Legislative oversight of a bill of rights: a way to rectify judicial activism.

AuthorOstler, Duane L.

The term "judicial activism" has become a common part of modern American political speech, though it remains ambiguous and can often mean many different things. (1) It most commonly applies to judicial decisions that exceed judicial authority on issues that otherwise would be decided by the legislature and is most frequently invoked when some aspect of the bill of rights is litigated.

Political leaders in both parties have condemned judicial activism, particularly where it threatens their party's ideology. For example, in 1968 Richard Nixon stated, "I want men on the Supreme Court who are strict constructionists, men that interpret the law and don't try to make the law." (2) In 1986 Ronald Reagan said that America has "had too many examples in recent years of courts and judges legislating." (3) Yet Democratic leaders can feel just as much concern for judicial activism as their Republican counterparts. Barack Obama expressed fear in 2012 that a conservative Supreme Court might disagree with the new healthcare law:

I'd just remind conservative commentators that, for years, what we have heard is, the biggest problem on the bench was judicial activism ... that an unelected group of people would somehow overturn a duly constituted and passed law. Well ... I'm pretty confident that this court will recognize that and not take that step. (4) This Article asserts that judicial activism does not have to be inevitable and can be overcome by way of structural change to the Constitution.

Indeed, some of the founding fathers had just such a perspective. They preferred legislative oversight of rights issues, rather than risking judicial activism by leaving such matters to the judiciary.

MADISON'S VIEWS ON THE BEST WAY TO PROTECT RIGHTS

Despite having proposed the Federal Bill of Rights in 1789, James Madison had grave misgivings about constitutionalizing a bill of rights. (5) He proposed the Bill of Rights mainly to stop the call for a second constitutional convention, rather than out of concern for actually protecting rights. (6)

However, Madison firmly believed there was a way to protect individual rights from state abuses, without having a bill of rights. This method was so vital to his thinking that he proposed it at the start of the Constitutional Convention in 1787. The sixth resolution of his Virginia Plan gave the National Legislature the power "to negative all laws passed by the several States contravening in the opinion of the National Legislature the articles of Union." (7) This was no afterthought, written to satisfy those clamouring for a bill of rights or threatening a second constitutional convention. Rights protection would be provided by the federal Congress vetoing state rights violations.

For Madison, the legislative veto was needed as a rights protection because "[e]xperience had evinced a constant tendency in the states to ... [among other things] oppress the weaker party within their jurisdictions." (8) Madison's proposal for the legislative veto was initially approved by a majority of the delegates to the constitutional convention. (9) It was only later that it was dropped, over the objections of many. (10) Other delegates who supported the legislative veto included George Read, John Dickinson, (11) Charles Pinkney, Jacob Broome, James Wilson, James McClurg, and John Landgon. (12)

One may wonder why these founders distrusted state legislatures, yet were willing to trust the Federal Congress with a veto. The reason involved factions, which Madison considered the greatest threat to individual rights. As he explained in The Federalist No. 10, factions could easily control smaller state governments, but it was less likely they would control the legislature of a large government, drawing its membership from all of the states. "The influence of factious leaders may kindle a flame within their particular States, but will be unable to spread a general conflagration through the other States." (13) This is because of the greater sociocultural and political diversity found where there is a "greater number of citizens...

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