Is there some specific reason why it's allowed, or have judges just brought it upon themselves to use it?
Criminal Defense Attorney
I guess it depends on how you define judicial activism. The. U.S. Supreme Court has issued many decision that many people consider to be judicial activism. But each of their decisions has to have the agreement of at least 5 of the nine justices. So one justice cannot make a decision on his own. There is no specific prohibition against judicial activism in the contitution
Criminal Defense Attorney
The term is a political one. It is used in many different expressions by the various political divisions within the country.
Note, as an example, that each side of an argument about spending for example refers to special interests being the problem. For "liberals" special interests are any one who is opposed to a limitation of gun rights or resists certain programs. For conservatives, its unions and social activists.
The above is not intended as legal advice. The response does not constitute the creation of an attorney client relationship as this forum does not provide for a confidential communication.
Constitutional Law Attorney
Yes, judicial activism violates the Constitution.
Article I of the Constitution deposits the legislative power of the People in the Congress. Article II, similarly, deposits the executive power of the People in the President. Article III, the article that stands up the federal judicial branch of the government, deposits the judicial power of the United States in the Supreme Court and in such inferior tribunals as Congress should devise.
This separation of powers was a necessary prerequisite to the approval of the Constitution by the 1787 Philadelphia Convention and its ratification by the States. The Framers of the Constitution feared the centralization of power and its deposit in a single hand, such as in European monarchies. So they took the three great strands of power -- legislative, executive and judicial -- and separated them into three separate centers.
In The Federalist No. 78, Alexander Hamilton explained the Federalists' view that the judicial branch was that one least likely to endanger the liberties of the People. What he says in explanation of the powers of the Legislative, the Executive, and the Judicial is instructive:
"Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments."
The executive HOLDS THE SWORD.
The legislative COMMANDS THE PURSE AND SETS THE RULES REGULATING THE RIGHTS AND DUTIES OF EVERY CITIZEN.
The judicial, in contrast, does not command sword or purse, does not control the direction of the strength or wealth of the Nation.
So, when a judicial decision has the effect of setting policy for the Nation then the decision constitutes judicial activism, and violates the Separation of Powers, most typically because the judiciary has encroached on the prerogatives of the Congress to set the rules by which the rights and duties of citizens are regulated.
In his First Inaugural Address, Lincoln warned of the loss of this important line between policy set by Congress and judgments in particular cases made by the judiciary,
"I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal."
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