A Note on Judicial Activism
by Jeffrey Smith

Judicial activism — I hear it all the time: how this country suffers from judicial activists who impose their own version what the laws should be, and legislate in place of the people we elect to legislate for us, and how we need to get people on the bench who will respect the Constitution and not be judicial activists.

Now I'm all for that. But I'm not sure Senator Frist and his friends mean the same thing that I mean by that phrase "respect the Constitution." 

Does Senator Frist mean someone who would declare the Americans with Disabilities Act, the No Child Left Behind Act, the Medicare expansion of 2004, the Patriot Act, the Defense of Marriage Act unconstitutional? I do.

Does Senator Frist mean someone who would point out the fact that almost every piece of legislation passed by the United States Congress since 1933 is unconstitutional? Or should I put the year as 1913, or 1861, or 1790? There's a good argument for each of those dates to be the right date.

Does Senator Frist mean someone would state forthrightly that almost every assertion of executive power in modern times is unconstitutional? I do.

Does Senator Frist mean someone who would rule that all the mass of regulations we have accumulated since federal agencies began issuing regulations are null and void because they have no basis in the Constitution? I do.

Does Senator Frist mean someone who would be willing to rule that most police investigations violate the Bill of Rights in one way or another, and that the so-called War on Drugs is one vast violation of our individual liberties and rights? And ditto for that new war, the War on Terror? I do.

But somehow I think Senator Frist does not mean that. He's simply against judicial activists when they act in a way he doesn't like. He doesn't mind judicial activists when they act in a way he approves of,  like putting their imprimatur on all those unconstitutional acts he and his fellow Senators and Members of Congress enact into law.

And that word enact brings out the truth here. All those acts were enacted by someone. All those regulations were promulgated by someone. All those investigations and searches for drugs and terror were performed by someone. And those "someones" were not judges. They were legislators and bureaucrats and police. They were members, in one way or another, of the legislative and executive branches of government — whether it be federal, state, or local. 

All those unconstitutional laws and all those violations of the Constitution were brought into being by legislative activists and executive activists. The judicial activists just added their authority, but they did not start it.

So if Senator Frist is alarmed at activists who impose unconstitional laws and rules on us, he had better include Congress and the President among his targets. He had better, in other words, include himself.