In theory, proper implementation of judicial activism could provide a check and balance on existing laws, but it is often abused to further ideologies and personal preferences. Because men are not angels and are subject to fallacies and enflamed passions, better long-term societal results would be achieved through the existing system of statutory interpretation combined with stare decisis, or adherence to precedent. Fickle opinions based on personal and political whim will lead to arbitrary and unpredictable outcomes. Based on nothing substantive, the population will eventually lose faith in the judiciary and come to view the institution as just another political tool that dishes out favors to a select few and punishes others who have momentarily fallen out of favor. Under the current system, overruling a lower court decision or prior precedent is rare and can have serious consequences. For example, if the court reverses a lower court ruling entirely, the defendant is free and cannot be recharged or retried. Imagine the havoc and chaos that could ensue if the practice of overruling otherwise just decisions were widespread.
Speaking of stare decisis, Sir William Blackstone wrote: “Yet this rule admits of exception, where the former determination is most evidently contrary to reason; much more if it be clearly contrary to the divine law. But even in such cases the subsequent judges do not pretend to make a new law, but to vindicate the old one from misrepresentation. For if it be found that the former decision is manifestly absurd or unjust, it is declared, not that such a sentence was bad law, but that it was not law [emphasis added]; that is, that it is not the established custom of the realm, as has been erroneously determined” (Blackstone, 1765). Not entirely bound by precedent, judges confronted with errant decisions are obligated to correct any deviation from the true law and to restore reason and conformity with the higher law (Reid, 2007). In other words, God’s law always trumps the law of man. This fact highlights why judges need an understanding of God’s law in order to make correct determinations.
The Constitution was derived from Mosaic law, or God’s original laws. What we have how is hundreds of years of interpretation thereof. Justice Antonin Scalia argued that originalism is the only principled way for judges to avoid enshrining their own policy preferences into law and chastised those who believed in a “living” Constitution which, according to Scalia, was simply a rationalization for “results-oriented” judges to decide cases however they chose. A principled judge, Scalia followed originalism even if it led to results with which he disagreed. For example, in Texas v. Johnson, Scalia joined the majority in striking down laws prohibiting desecration of the flag, an act he despised but nevertheless concluded was protected by the First Amendment (Ryan, 2017). This case highlights that even originalist interpretation can lead to questionable outcomes and that the law of man and his interpretation thereof is ultimately fatally flawed. Stare decisis and originalist principles result in generally better outcomes over time, but absolute justice can never be achieved on earth.
Blackstone, William. Commentaries on the Laws of England: In Four Books, Volume 1 (1765).
Danoff, Brian, and L. Joseph Herbert, L. J. Alexis de Tocqueville and the Art of Democratic Statesmanship. Lantham, MD: Lexington Books (2011).
Hamburger, Philip. Is Administrative Law Unlawful? University of Chicago Press (2014).
Reid, Charles J. Judicial Precedent in the Late Eighteenth and Early Nineteenth Centuries: A Commentary on Chancellor Kent’s Commentaries. Ave Maria Law Review (2007). https://lawreview.avemarialaw.edu/wp-content/uploads/2019/06/V5i1.reid_.copyright.pdf.
Ryan, James E. Choosing Judicial Activism Over Originalism. Education Next, vol. 17, no. 4, 2017. ProQuest, http://ezproxy.liberty.edu/login?qurl=https%3A%2F%2Fwww.proquest.com%2Fscholarly-journals%2Fchoosing-judicial-activism-over-originalism%2Fdocview%2F2123685478%2Fse-2.
Texas v. Johnson, 491 U.S. 397 (1989).
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