Bite This

The definition of “judicial restraint” seems to hinge on whether one is a Democrat or a Republican. For Republicans, it would appear to mean restraining the courts from doing anything that reverses legislation or popular votes that violate the U.S. Constitution. For Democrats, it means not letting the courts sit idly by while the Constitution is infringed upon while using the document as a guide for decisions.

Let’s face it: legislators and voters approve things that cannot be justified when held up against that simple, elegant and eloquent document that the Constitution is. Because it is simple, it requires interpretation. It set very broad guidelines and left the interpretation of it to future generations.

Mr. Lincoln interpreted it to prohibit slavery, and that interpretation tore the country in half like it has never been. He was probably the first activist president we had after the first few administrations of our young republic. After several generations, activism is now considered by many to be un-patriotic.

Questions aren’t allowed.

When I was young, I asked a preacher about a foot-note that I had read in a Bible the church had given to me in appreciation of my work with the children's choir. My question raised an issue that I’m not quite sure the preacher was willing or able to deal with, so his response (and I quote—it’s still vivid all these years later) was “there’s a special place in hell for people who ask questions like that.”

That, in a nutshell, is the Republican definition of “judicial restraint.” It’s more bizarre than “don’t ask, don’t tell”. It’s just “don’t ask.”

If the courts are not allowed to interpret the Constitution, then what, exactly, is their purpose? If offering an honest opinion that does not suit the current administration constitutes “activism” and doesn’t adhere to the policy of maintaining e status quo, where does that leave us?

We were not formed as a country that maintained the status quo. Our fore-fathers broke the law to make new ones. Ones that allowed room for dissent. From the court room to the ballot box.

We have a long history of dissent in this country, and it has torn us apart once before.

Rather than demonize dissent, we should glorify it. Recognize it for what it is: the Constitution helping us work our way to a more perfect union.

The framers couldn’t anticipate every problem, so they left things open. And they created the judiciary to deal with those problems. Attempts to castrate it only serve to diminish the on-going experiment in democracy that we started a couple of hundred years ago.

Judicial restraint should not be about further infringing on civil rights, but about protecting them.

The judiciary was not created to rubber-stamp Presidential policy. It was created to keep Presidents and Congresses in check.

Implicit in the phrases “judicial activism” and “judicial restraint” lies this philosophy: one branch of the federal government should not act unless the other two say it’s ok. That is not, never has been nor was ever intended to be the function of the judiciary.

Legislators and presidents are activist by nature. That’s what got them into politics and drives their ambitions, and therein rests the core of their personalities.

And if the Congress and the president have the ability to legislate at will on a broad range of issues, why are they insisting that the third branch of our great republic relegate itself to being an impotent rubber stamp? That is the exact opposite of the role the judiciary was meant to play in our political system.

The words that the legislative and executive branch throw around like so much confetti could easily be turned right back on them. “Activism” and “restraint” cross party lines, as well as the branches of government. What they really mean is “I don’t agree with you” or “I do agree with you”, respectively.

And they are tailored to stir up trouble by re-naming what should be our most sacred duties as a nation and making them seem scary on an apocalyptic scale.

Judges don’t make laws; they just point out when laws are inconsistent with the Constitution. They are the last bastion of sanity and serve their greatest purpose when they tell the President or the Congress to bite them.

Without the judiciary, we could easily descend into a dictatorship or military government. And if the other branches of government don’t like it, they can just get down on their knees, find a good spot on my heinie and bite me.