Legislating from bench … or not?
The American Revolution occurred because the people objected to the autocratic rule of the distant King of England.
The founders wanted a limited federal government, subject to the will of the people. They selected a republic with a unique structure designed to stand the test of time.
To limit the power of the Federal government, the Constitution they wrote enumerated all of the powers granted to the Federal government and reserved all other powers to the individual states.
The Legislative branch was bi-cameral, with House and Senate representation allocated according to population and the number of states respectively.
This intentional design provides that the peoples voices be heard in a balanced way without urban overwhelming rural.
The founders realized that the republic’s federal government would have to adapt to future circumstances.
In order to meet this challenge, the Congress was empowered to express the will of the people.
By passing legislation and having it signed into law, the Congress could add powers to the Federal government – in addition to those specifically enumerated in the Constitution.
The founders wanted a majority of both the House and the Senate to affirmatively act; and the president sign the legislation to add to federal powers.
Absent congressional action, the federal government’s powers could not be expanded. Another remedy included in the constitution is the power to amend it, albeit with a higher bar for success.
So, the founders felt comfortable that the government would reflect the will of a majority of the people all of the time.
The role of the Supreme Court was to interpret laws impacting the scope of the federal government and determine if they violated some other laws in effect or the constitution itself.
This is now known as a “strict interpretation” of the constitution.
Taken together, this is a very elegant structure designed to limit the role of the federal government and make its expansion purely a function of the expressed will of the people through Congress.
Has it worked? Not always.
By the end of FDR’s presidency, the court was entirely made up of activists. They consider the constitution a “living document” and making laws from the bench acceptable.
Activist judges dominated the court most of the time since.
Consider the abortion debate: The founders would say, absent legislation passed by Congress and signed by the president, the federal government has no role to play, and the power to regulate it belongs to each state.
Even though the word does not appear in the constitution, in 1973 the Supreme Court “saw” an implied right — and abortion became the law of the land.
Legislating from the bench.
One could argue that the vigorous debate on the issue and state prerogative should continue until a national majority emerges and demands their congressional representatives codify it — and I agree.
In my view, this is what the founders intended.
Gable resides in Altoona.
He is a periodic contributor to the Mirror’s Opinion page.