Talking Points (Judicial Philosophy)

  • The U.S. Constitution granted law-making power to the legislative branch and gave the Courts no authority to legislate from the bench.
  • The judiciary was intended by the Founders to be the "least dangerous" branch of government because it could exercise neither force nor will, but only judgment.
  • Judicial activism dangerously breaches the constitutional separation of powers.
  • A changing society does not require that judges change their interpretation of the Constitution or make and modify laws.
    • The most effective way to apply constitutional mandates to a changing society is for the legislative branch to pass new laws or revise outdated laws. In this way, elected representatives are held accountable to enact the will of the people.
    • Constitutional amendments provide another constitutional method to adapt the Constitution.
    • Judges, primarily un-elected officials appointed for life, are not accountable to the people for their actions and, thus, should not be allowed to legislate.
  • Courts were not meant to protect minority rights through their liberal interpretation of laws. The people, through laws and amendments, have been most successful at protecting minority rights.
    • Brown v. Board of Education¬†is typically cited as an example of the necessity for, and success of, judicial legislating to protect minority rights. However, Brown merely reversed another bad Supreme Court decision in Plessy v. Ferguson. The citizens of the United States were the ones who legislated the guarantee of equal protection when they passed the 14th Amendment. It was the Supreme Court in Plessy in 1896 that approved the "separate but equal" notion of equal rights in the first place, and that judicial mistake lasted for almost 60 years until Brown. Courts have been the problem in many instances when it comes to minority rights, not the solution.
  • To ensure that strict constructionist judges are appointed to the bench, we must:
    • Demand accountability from our president who nominates federal judicial candidates and from our senators who vote for or against those candidates.
    • Vote for presidential and senatorial candidates who will nominate and approve only those judges who adhere to strict constructionist judicial philosophy.
    • Demand the impeachment of judges who act unconstitutionally through their activism. Admittedly the American people and their elected representatives have been historically loathe to enforce the ultimate sanction against judges. However, the Constitution is clear that federal judges only hold their lifetime office "during good behavior." Judicial activism is the antithesis of "good behavior."
    • Demand that law schools teach both the history of the Constitution and the proper respect for the text and original understanding of the document. Most constitutional law professors don't even require that students read the U.S. Constitution, let alone understand why its specific language was chosen or how it was understood at the time.
    • Refuse to accept the argument that a "living Constitution" is somehow a valid judicial philosophy. The "living Constitution" is a merely a fig leaf used by liberals to justify judges becoming legislators.
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