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Should ideology matter?

By Thomas L. Jipping
web posted July 2, 2001

The Constitution is pretty clear when it comes to picking judges. The president nominates and, subject to Senate approval, appoints them. Since the power to make law belongs to the people and legislatures, judges can only apply that law to decide cases. Judges do not have the power to make law.

What if the people ban abortion and I think abortion should be legal? What if the people say the federal government can only regulate interstate commerce and I want it to regulate the entire economy? You get the drift - what if I don't like the law the people make? Well, I'm part of the people and if I don't like we do, I can try to change it. But if the people don't make the law under which they have to live, they do not govern themselves and they are not free.
Let's get this real clear. If the people make the law, they are free. If the people do not make the law, they are not free. It's that simple.

That puts the whole issue of judicial activism in better perspective. Judicial activism is judges making law. You know, sticking extra sentences or paragraphs in the Constitution or re-writing sections of statutes. There's no right to abortion in the Constitution, so the Supreme Court put one in. The Constitution only bans a narrow establishment of religion, so the Supreme Court broadened it to ban a wide endorsement of religion. The Constitution allows the feds to regulate interstate commerce, but the Supreme Court said this also covers a farmer growing crops on his own land to eat at his own table. The people did one thing when making the law, but the Court did something entirely different by changing the law.

It does not matter what law the courts make. Don't be so short-sighted that the circumstance of the moment leads you to abandon your character. Don't sell your birthright for a bowl of stew.
Whether you like the results or not, courts don't have the power to make law. Just because a dictator puts food on your table does not mean he's not a dictator. Mussolini made the trains run on time, but he was still a dictator. Once we have given up the exclusive power to make law and allowed judges to do it, judges become the dictators. We have the rights judges choose to give us. We have the public policy judges choose to allow, or even to impose upon us. We can have all the elections we want, our legislators can pass all the statutes they want, we can amend the Constitution a thousand times, and none of it will mean anything because judges have taken the power to make law away from us.

Last Tuesday's hearing [in the Senate Judiciary Subcommittee on Administrative Oversight and the Courts] was an effort to make all this tyranny go down a little easier. Those who don't like the law the people make believe they have a better shot at the courthouse than at the statehouse. They want judges who will make law, knowing that most of these activist judges will produce liberal results. Hence the title "Does Ideology Matter?" It's their way of asking whether judges should be picked based on the results they produce rather than on their respecting the law the people make.

If judges do not have the power to make law, then ideology does not matter. If judges can only apply the law made by the people, then the results they reach are the results of the law (that is, of the people) and not the results of the judge. Ideology may matter in political campaigns, it may matter in legislative debates, it may matter in popular referenda, but it does not - indeed, it must not - matter in choosing judges.

Ideology only matters in choosing judges if judges may make law. If judges may make law, we are not free. It's really not complicated at all. If ideology matters in choosing judges, freedom does not matter for anyone.

Thomas L. Jipping is Vice-President for Legal Policy at the Free Congress Foundation.

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