Desirable Policy Results

Judicial activism has never been short of defenders.  Special interest groups whose agenda lawless judges are pushing want them to keep pushing it; so they defend what "activist" judges are doing.  They claim that the Constitution is doing it; the judges are only its agents.

Sooner or later those special interests lose anyway.  As the composition of the courts slowly changes in response to political processes, the judges change their biases.  Once or twice a century, they scrap one body of doctrine and adopt another, perhaps the exact opposite of the earlier one.

With rare exceptions, even critics of "judicial activism" avoid calling a spade a spade.  They're afraid to rock the boat.  If "We the People" got wise to the fact that our federal judiciary is neck deep in employee fraud, it would create a lot of stress in our political system.  God only knows where it would end.  So we are all taught, in school and in the mass media, that our Constitution evolves to incorporate religious principles made up by judges, principles that stand in obvious conflict with those our founders actually placed in the Constitution [1].

Judicial independence is a sacred cow.  America's political elites protect it even though it repeatedly fouls the community well.  Nobody blows the whistle in terms the public could understand.  However, legal scholars and social scientists freely discuss the truth in books that only other legal scholars and social scientists read.

It's a good thing that the courts don't interpret the Constitution to follow the intent of its authors; its authors had terrible ideas.  Good judges must have a "nuanced" view of the Constitution.  Good judges must rule according to "fundamental law;" they must rule according to "basic fairness."  Their rulings must reflect the values of "moral elites," they must reflect our values.  That's what "fundamental law" is; it's our values,

It's clear that all those rubes out in the hinterlands can outvote us.  God forbid that the people they elect should make any big decisions.

Why should a contemporary generation be bound to the will of a generation long dead?  Courts must "evolve" the Constitution to adapt it to the needs of changing times.

"The idea that institutions established for the use of the nation cannot be touched nor modified, even to make them answer their end . . . is most absurd . . . Yet our lawyers and priests generally inculcate this doctrine, and suppose . . . that the earth belongs to the dead and not the living."

The other main story line legal deep thinkers came up with they call the functional argument.  It says that judges should interpret the Constitution to produce "desirable policy results."  The "politicians" elected by "We the People" often want the wrong policies.  Therefore, it's best that judges, who are free to ignore our wishes, make all the important policy decisions [2].

That's the functional argument.  Now let's review some judicial policy results and see if they were all that desirable.
 

SOME FAMILIAR POLICY RESULTS

In a companion essay we made a case that the Supreme Court helped cause the Civil War.  Maybe the war would have happened without the Dred Scott decision, maybe not.  One can never be sure.  We also presented a case that judicial activism helped .  Maybe it too would have happened without the schemes and mistakes of a lawless judiciary.  One can't ever know that for sure either.

We discussed elsewhere how lawless federal judges have long been restricting the free exercise of religion and imposing an alien religion on us in place of our own.  That doesn't seem desirable at all much less constitutional.  We also saw how they caused a seemingly endless crime wave and destroyed our urban public schools.  Let's briefly review some other judicial policy results.
 

DEMOCRACY IN THE DUMPSTER

Judicial activism is a major driver for failures elsewhere in government.  You no doubt think I've gone off the deep end here.  How can one blame the judiciary for somebody else's failure?

That's easy.  Any facility that is not exercised will atrophy and decay.  Elected politicians, like most of us, look out for their own interests; and they usually play the hand they are dealt.  When they came on the job, the system had long since come to accept judicial usurpation of their responsibilities.

That abuse seemed impossible for them to change; so they adopted a career strategy that allowed them to coexist with it.  The judges, who the voters can't touch, pass the unpopular laws.  Those who get elected to implement the will of "We the People" can then avoid making any hard choices.  Consequently, our government is unresponsive to public demands.

Of course the public often wants some unwise things.  So laws and policies enacted in response to public demands would sometimes produce awful results.  However, those results would be short lived.  Ulysses S. Grant once said that the best way to get rid of defective laws was to enforce them.  If we really had a "Republican Form of Government," we would be able to get rid of laws that dodn't work.  Defective laws passed by judges are a lot harder to junk.  Those who claim to speak for "Fundamental Law" can't afford to admit their mistakes.
 

RATIONAL EXPECTATIONS

It may not be obvious; but one can make a case that judicial activism caused voter apathy.  In 1996, a presidential election year, about 48 1/2 percent of the eligible voters went to the polls.  That was the lowest turnout in about seventy years.  Yet it was only a little lower than it had been in most of those years.  The average voter turnout, during the last two-thirds of the twentieth century, was well under 60 percent.  It fell to about 50 percent from 1980 on.  In off-year or primary elections, voter turnout often falls into the 20 to 30 percent range.  So American voters have long had a low level of interest in elections [3].

Even some people who do go to the polls throw their vote away.  They express their frustration by voting for candidates who are only symbols.  During the 1990's, a fellow named Ross Perot twice ran for president on a third party ticket.  Mr. Perot got a fair amount of support.  He received about 10 percent of the vote in 1996 and almost 20 percent four years earlier.  Counting those who stayed away, during the 1990's, and those who voted for symbols, two-thirds of us voted for "none of the above."  

We see much hand wringing over voter apathy and hear much discussion of its causes.  The hand wringers view low voter turnout as a symptom of a deeper problem.  If the people don't bother voting, they must not really believe in the system.  So they won't support what that system decides to do.

A professor has suggested a solution to the problem.  Let's punish those who fail to vote; we'll levy a fine on them.  This is true liberal thinking.  The moral elites know what's good for everybody else; they'll make sure our vote is meaningless; but they'll force us to go through the motions anyway [4].

My own belief is that those who don't bother to vote are behaving in a sensible way.  As economists would say, their behavior follows the "theory of rational expectations."  The theory says that, on average, most people will take account of all the data they have.  They will then make rational choices based on that data.  Thomas Jefferson said roughly the same thing.  But he didn't know he was talking about economics [5].

Based on the theory of rational expectations, low voter turnout makes perfect sense.  The public is smart enough to see that the system isn't working and that they are helpless to change that by their vote.  The people never see the reasons.  They just blame Congress or the President; they don't see the judiciary's role in the systemic failure.
 

NOTES & CITATIONS

1.  Abe Lincoln was one of the rare exceptions.  In a speech in Cincinnati on Sept. 17, 1859, he said of the Supreme Court's fraudulent Dred Scott decision: "The people of these United States are the rightful masters of both congresses and courts, not to overthrow the constitution but to overthrow the men who would pervert the Constitution."

2.  The Thomas Jefferson quote is from his letter to William Plumer regarding the Dartmouth College case, 21 July 1816.  The Library of Congress has posted a facsimile of the letter on its American Memory web site.   Go to http://lcweb2.loc.gov/ammem/mdbquery.html and perform a search on the key words, "Letters Thomas Jefferson."  As of December 3, 2002, Jefferson's July 21, 1816 letter to William Plumer was the fourth hit.  Most of the ideas paraphrased in this section were expressed by legal scholars quoted in the book by McKeever.

3.  Voter participation statistics were taken from USA Today, November 7, 1996, page 3A, and Nov. 8, 1996, page 4A.  Both articles were written by Bob Minzesheimer.  The off year voter participation rates came from an article written by Ohio Secretary of State Bob Taft, in the Cleveland Plain Dealer, May 4, 1996.

4.  Professor Arend Lijphart proposed, in the Chronicle of Higher Education, that we punish non-voters.  The Chronicle published his piece on October 18, 1996, page B3.  About six weeks later another professor, named Libby Rittenberg, took issue with Professor Lijphart's suggestion.  Her letter to the editor of the same publication appeared in the Nov. 29, 1996 issue, also page B3.

5.  One can find a cursory description of the theory of rational expectations in Attfield, 1985.