Law at the Jesus Creed: David Opderbeck 2

But would even active disobedience be effective against our current judicial state? When peaceable means and limited civil disobedience fail--at least according to the Protestant theologians [John] Knox and [Samuel] Rutherford--revolution can be justified from a Christian viewpoint.

 Thankfully, at the end of his essay, Colson acknowledged that the tipping point towards military revolt had not yet been reached.  Yeoman evangelicals were able to return their pitchforks, muskets and torches to the garage for the time being.  Yet Colson's anger at what he perceived as a judicial usurpation of democracy continues to simmer in conservative Christian circles.

In this post, I'd like to explore these questions:  What is 'judicial activism?"  Is "judicial activism" something Christians should fear? 

It's common in politically conservative circles to argue that "judges should apply the law, not make law."  Conservatives worry that judges no longer feel constrained by the meaning of the legal texts, such as the U.S. Constitution, that govern the cases they are deciding.  Since federal judges are not elected and are appointed for life, they argue, this removes control over the government from the hands of the people.

This basic concern is not entirely unfounded.  Perhaps the paradigmatic example of this problem is the Supreme Court's opinion in Griswold v. Connecticut, a case involving a challenge to a Connecticut statute that banned the provision of contraceptives to married couples. 

Although the Connecticut statute seems absurd, there is nothing in the Constitution that would explicitly prohibit a state legislature from enacting such a law.  Nevertheless, the Court stated that the "specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance."  One of these penumbral rights, according to the Court, is a broad, general right to "privacy."  The Court found that the Connecticut contraception statute was an unconstitutional violation of the right to privacy.  This laid the analytical groundwork for later constitutional challenges to other state laws involving sexuality, including the right to abortion articulated in Roe v. Wade.

Whatever one ultimately thinks about the constitutional right to privacy, it's reasonable, I think, to be concerned about judges invalidating state laws based only on "penumbras formed by emanations."  It's fair to suggest that law should be grounded in text, precedent and history, rather than divined from "penumbras."

At the same time, however, it's not true that the judicial role is always and only to "apply" laws enacted by democratically elected legislatures.  In fact, much of the law that governs our everyday activities - including the law of contracts, property, torts, and criminal law - has its roots in the "common law," which is a system of judge-made law.  In the traditional formalist / natural law vein, the judge's role regarding the common law was to discern and codify legal principles evident in the order of nature.  I suspect that this historic practice vests more authority in judges than most conservatives today would appreciate.

Moreover, judges must "interpret" constitutional, statutory and regulatory law.  An act of "interpretation" is never merely passive, as reader-response theory and other contemporary hermeneutical models demonstrate.  Although some judges purport to be "strict constructionists," we can question whether there really ever is such a thing as "strict construction" of any received text (as our frequent debates about Biblical hermeneutics attest!).

Finally, there is a sense in which judges properly stand in judgment over legislative and regulatory law, in that judges often must evaluate whether these subsidiary norms comport with constitutional law.  Supporters of this concept of "judicial review," which was articulated in the famous 1803 Supreme Court case of Marbury v. Madison, argue that this power provides an important check against executive and legislative tyranny.  This is particularly significant, they suggest, when the issue involves historically disenfranchised or oppressed minorities, such as in the historic school desegregation case of Brown v. Board of Education.