In Federalist 78, Alexander Hamilton wrote that judgment is the ultimate role of the judiciary. It is not intended to have “force nor will, but merely judgment.” Within the context of divided powers, the role of the courts then is to rule on the constitutionality of laws—not to create them.
Unfortunately, the Supreme Court is straying ever farther from its original intent into what some call ‘judicial activism.’ In this judicial philosophy, instead of merely determining the constitutionality of congressional and executive action, the Supreme Court takes a legislative role in place of Congress. When it does so, it becomes something of a super legislator, unchecked save for the rare judicial nomination and Senate review.
As seen through the rulings listed in this article, dire consequences can be had when the Court strays from its proper role.
Korematsu v. U.S.
With the attack on Pearl Harbour, America became embroiled in World War II and animosity towards those of Japanese descent in the U.S. reached a pinnacle. In 1942, FDR signed Executive Order 9066, forcing into internment camps 120,000 ethnic Japanese living in the U.S. Those who refused to leave their homes for internment faced a fine of $5,000 and a year in prison.
Most of them were American citizens. One man, Fred Korematsu, challenged the order but the Supreme Court ruled against him on the basis of “military necessity.” Executive Order 9066 breached the Constitution by denying American citizens their rights, notably the presumption of innocence and due process. The Korematsu case gave government free rein to send Americans to internment camps and deprive them of all of their freedom without a trial. It set a precedent that rights afforded in the Constitution can be nullified under the pretense of security.
Roe v. Wade
Norma McCorvey sought an abortion in Texas, where it was illegal to terminate a pregnancy that didn’t threaten the life of the mother. Unable to abort the fetus under state law, McCorvey sued Wade, the Dallas district attorney. Under Roe v. Wade, the Court established that access to abortion “is a constitutional right.” The Court’s conclusion was based on “a broad ‘right to privacy’” found in the Fourteenth Amendment according to Griswold v. Connecticut.
Former representative Dr. Ron Paul points out that the legal logic used in the decision is flawed. He affirms the write to privacy saying that “the government doesn’t have the right to invade your home or have cameras in your home” but “that doesn’t give you the right to kill a child.” The right to due process referred to in Roe didn’t have anything to do with the case at hand.
Dred Scott v. Sandford
Dred Scott’s owner brought him as a slave from Missouri to current day Minnesota, a free territory under the Missouri Compromise. After living there for several years, Scott returned to Missouri, which remained a slave state. He then sued for his freedom on the grounds that he was legally free after having lived a substantial number of years in a free territory. The Court ruled against him.
According to President Lincoln, “that decision declares two propositions – first, that a negro cannot sue in the U.S. Courts; and secondly, that Congress cannot prohibit slavery in the Territories.” Lincoln argued that the decision was not based on the Constitution and that it ignored the historical context in which the Constitution was written. A century later cases like Korematsu and Roe followed propositions similar to Scott; that individual’s rights are subject to arbitrary circumstances.
National Federation of Independent Business v. Sebelius
The Affordable Care Act contained an individual mandate that required individuals to purchase health insurance. The legal battle that followed claimed the individual mandate “exceeded Congress’ enumerated powers… [That the] Medicaid expansions were unconstitutionally coercive; and [that] the employer mandate impermissibly interfered with state sovereignty.”
The Court justified the mandate as a tax, though, as Congress does have the power to levy taxes under the Constitution. However, taxing someone for not acting a certain way extends Congress’ power beyond what is constitutionally permissive. Ben Shapiro wrote the ruling implied that the federal government “can tax non-behavior,” and if that is true, “they can tell you to do virtually anything.”
Plessy v. Ferguson
With the Separate Care Act (1890) Louisiana mandated rail cars carrying passengers to have segregated albeit “equal” accommodations for whites and blacks. Authorities arrested Homer Plessy, who himself was one-eight black, for sitting in the white section on a rail car. The case made its way to the Supreme Court where Plessy lost his fight, and the doctrine of “separate but equal” was enshrined in the United States.
The dissenting opinion in the Court stated that no “legislative body or judicial tribunal may have regard to the race of citizens when the civil rights of those citizens are involved.” The decision upheld a precedent that was in blatant violation of both the Thirteenth and Fourteenth Amendments. The state can’t deprive Americans of the liberties they have a right to under the Constitution, but the Plessy ruling went against this and gave the government the power to promote racism and segregation.
The Founding Fathers created the United States and the document under which it was to be governed for the preservation of liberty. The three branches of government they designed and the powers enumerated to each under the Constitution weren’t decided on arbitrarily; they believed it was the best way for the citizenry to remain free. When the judiciary deviates from its proper role of determining if a law is constitutional, the republic fractures and the people lose their freedom.
The views expressed in this article are the opinion of the author and do not necessarily reflect those of Lone Conservative staff.