In my college days I took one of the toughest undergraduate classes offered at Wheaton College. It was a course on constitutional law taught by a rigorous and demanding professor who knew the history of the debates very well. The class was a challenge and getting a decent grade was really hard work. But I believe that course may have done as much to shape my view of America as any single college course I ever took. More than forty years later I remain grateful for this class. It has helped me understand America in a way that I think far too few Christians get, especially in the heat of modern debates over political opinions, left or right. 

ImagesI learned then, and have seen since, that debates about the interpretation of the Bill of Rights are common in modern American political and social debate. Ever since I can remember we have debated judicial activism. Whether from the political left or the political right our national tradition of ensuring religious liberty for all stems from the protections of the First Amendment. Our courts, especially our Supreme Court, must vigorously enforce the religion clauses in ways that are often counter-majoritarian if we are to ensure the proper separation of church and state. The will of the majority does not apply to court decisions if the courts are doing their job as intended by the founders.

President Obama, in the wake of the Supreme Court hearing debate over his signature legislative accomplishment on mandatory health care, recently made strong remarks about the problem of “unelected judges” opposing the will of elected legislators. The president taught constitutional law for ten years and knows better. The right of the judiciary to declare specific acts of legislation unconstitutional goes back to the famous Marbury vs. Madison (1803) decision in which Chief Justice John Marshall articulated the concept of judicial review and thus declared the judiciary to be the final arbiter in determining what the law is. 

The President clarified his statement the day after making it by saying he had in mind the 2010 Affordable Care Act case, not the responsibility for judicial review. He knows the necessity of judicial review and admitted he was speaking only about this one case. But regardless of your view of Obamacare, love it or hate it, the president’s statement raises a great question about several basic concerns in our democracy that both liberals and conservatives do not often understand well. 

For example, how do we handle the will of the majority and legally support the rights of the minority? J. Brent Walker puts this succinctly, in Report from the Capital (Vol. 67, No. 4), when he says, “How do we resolve the tension between a fundamentally majoritarian Constitution with an essentially counter-majoritarian Bill of Rights?” 

Most of our elections and policy decisions are rooted in the will of the majority expressed through a peaceful democratic process. But, as former Supreme Court Justice Sandra Day O’Connor has said, the rights enumerated in the Bill of Rights have been withdrawn from the “vicissitudes of political controversy” and “depend on the outcome of no elections.” We rightly fear totalitarianism in this country but we forget that “pure majoritarianism” can also wreak havoc on our freedoms as well. The majority is not always right and there are times and situations in which the majority must be legally challenged. This is why judges have a responsibility to protect the rights of the minority, even if the majority is led by the president and/or an overwhelming election result. (This is also why federal and Supreme Court judges are not subject to elections!)

Again, the political left and right both tend to forget this vital point based on a case by case context. What was odd about the president’s statement was that it reflected a strong reaction against the Court from the left. 

This understanding of the Bill of Rights is what should guide the Court in all decisions but this is especially true with regard to cases about religion. The Court has the task of enforcing the religion clauses in the First Amendment. In recent history no other part of the law has been more frequently undermined by Christians in particular. Believing that Christianity is the “majority faith” and that the nation was founded on Christian principles people on the right tend to argue that the Court is repeatedly thwarting the will of the majority about the role of the church and religion in our society. For this reason the majority of cases that end up before the Supreme Court these days are related to the free exercise clause. 

When majoritarian values push a case before the Supreme Court the decision, which sometimes does not go for the majority view, is sometimes struck down. This raises the cry of “judicial activism” thus we hear again debates about the courts making laws and the courts being out of control. For the duration of my lifetime, since the end of World War II, the conservative movement has actively opposed “judicial activism.” While there are times when lower courts have been guilty of this charge the Supreme Court seems to have gotten this just about right, at least in most cases. 

Think, for example, about major decisions that were extremely controversial; striking down school-sponsored prayer, upholding abortion rights, protecting unpopular forms of speech and flag burning. These have fostered “judicial activism” feelings on the right. But recent opposition has come from the left who remind us that the Rehnquist and Roberts Courts have struck down 46 federal laws over two decades compared with fewer than 130 in the first two centuries of the Supreme Court. (Read that again!)

National-archives-rotunda-smallWhat is the lesson here? J. Brent Walker rightly concludes: “The lesson we should all learn is to be careful, those on the left and on the right, about charges of judicial activism. No, the Court should not strike down laws of Congress and other legislatures lightly and without much study and discretion. However, when elected branches pass or enforce laws that transgress constitutional rights, including protection for minority rights, the courts must act to take up their mandate to correct the error.” 

No one complains about judicial activism when the Court’s decision agrees with their own. Someone once quipped, “When the Court makes a decision that you like, it’s applauded as judicial statesmanship. If you don’t like it, it is called judicial activism.”

I am thankful for our third branch of government, the one we know the least about and also the one we complain about routinely. The nine justices do not judge every case perfectly, which is of course impossible. They have made decisions that I do not like. But they have more often than not protected us from allowing the will of the majority to trample on the rights of the minority, a right that is vital to the well-being and peace of this nation. With three branches of government there are ways to challenge Court decisions but they require a slow and (seemingly) tortured process. It is this very process that helps protect our way of life from tyranny and majority domination. This makes America rather unique among modern nations, a uniqueness that I have deeply treasured ever since I took constitutional law in college. 



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