Bench Memos

Recovering Constitutional Republicanism

may take drastic measures, says Carson Holloway today at Public Discourse.  But what looks drastic today is a tool that the framers fully contemplated our using when necessary:

Recent events remind us of the ongoing problem of anti-democratic and anti-constitutional judicial activism. Last month a federal district court judge in Massachusetts struck down portions of the Defense of Marriage Act. Last week, another federal judge struck down California’s recently enacted constitutional amendment defining marriage as a union between one man and one woman. Both cases involve the invalidation of democratically enacted laws on the basis of arguments that turn constitutional provisions to purposes that no one could plausibly contend were entertained by their framers or ratifiers. To this extent, such rulings are properly understood as attacks on democratic self-government and the rule of law.

Such judicial activism has been an ongoing problem for decades. In response, a conservative legal movement has arisen to offer resistance through public and scholarly argument, the election of constitutionalist presidents and senators, and, ultimately, the appointment of judges and justices who will confine themselves to the requirements of the constitution and refrain from imposing their own values as law. Such efforts have been fruitful but never fully effective. Judicial activism has been slowed but not stopped, with the result that democratic self-governance and the rule of law continue gradually to erode. Since even the incremental surrender of these fundamental principles of American republicanism is unacceptable, it is time to weigh the use of stronger medicine. It is time to consider the impeachment of federal judges as a remedy to judicial activism.

Read the whole thing here.

Matthew J. Franck — Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.

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