![\"Lawbook.jpg\"](\"https:\/\/wp-media.beliefnet.com\/sites\/120\/import\/imgs\/Lawbook.jpg\")
<\/span>I announced two weeks back that we are beginning a new series with David Opderbeck, a professor of law. He will educate us on law — should be fun.<\/i><\/p>\n<\/i><\/div>\n
Christians and “Judicial Activism”: <\/span>Viva la Revoluc?on?<\/p>\n There are few hotter flashpoints in the culture wars than the question of “judicial activism.” <\/span>For Christians, the question perhaps reached a boiling point in a famous (or infamous) essay by Chuck Colson, published in the journal First Things<\/a> in 1996, in which Colson stated:<\/p>\n In America today, we have very nearly reached the completion of a long process I can only describe as the systematic usurpation of ultimate political power by the American judiciary–a usurpation that compels evangelical Christians and, indeed, all believers to ask sobering questions about the moral legitimacy of the current political order and our allegiance to it.<\/p>\n <\/p>\n Colson suggested that if judicial activism continued unabated, Christians would be forced to engage in increasing acts of resistance, including active civil disobedience and perhaps even armed violence, but here are the questions first:<\/p>\n What do you think:<\/b> <\/b><\/span>What role should judges play in a democratic society?<\/b> <\/b><\/span>How should Christians living in democracies respond when judges shape the law in ways that seem to conflict with Christian values?<\/b><\/p>\n <\/span><\/i><\/div>\n But would even active disobedience be <\/p>\n Thankfully, at the end of his essay, Colson acknowledged In this post, I’d like to explore these questions: <\/span>What is ‘judicial activism?” Is “judicial activism” something Christians It’s common in politically conservative circles to argue This basic concern is not entirely unfounded. <\/span>Perhaps the paradigmatic example of Although the Connecticut statute seems absurd, there is Whatever one ultimately thinks about the constitutional At the same time, however, it’s not true that the judicial Moreover, judges must “interpret” constitutional, statutory Finally, there is a sense in which judges properly stand in <\/div>\n","protected":false},"excerpt":{"rendered":" I announced two weeks back that we are beginning a new series with David Opderbeck, a professor of law. He will educate us on law — should be fun. Christians and “Judicial Activism”: Viva la Revoluc?on? There are few hotter flashpoints in the culture wars than the question of “judicial activism.” For Christians, the question perhaps reached…<\/p>\n","protected":false},"author":70,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[62],"tags":[],"class_list":["post-4891","post","type-post","status-publish","format-standard","hentry","category-law"],"yoast_head":"\n
\nColson continues…<\/p>\n
\n<\/p>\n
\neffective against our current judicial state? When peaceable means and limited
\ncivil disobedience fail–at least according to the Protestant theologians [John]
\nKnox and [Samuel] Rutherford–revolution can be justified from a Christian viewpoint.<\/p>\n
\nthat the tipping point towards military revolt had not yet been reached. <\/span>Yeoman evangelicals were able to return their
\npitchforks, muskets and torches to the garage for the time being. <\/span>Yet Colson’s anger at what he perceived
\nas a judicial usurpation of democracy continues to simmer in conservative
\nChristian circles.<\/p>\n
\nshould fear? <\/b><\/p>\n
\nthat “judges should apply the law, not make law.” <\/span>Conservatives worry that judges no longer feel constrained
\nby the meaning of the legal texts, such as the U.S. Constitution, that govern
\nthe cases they are deciding. <\/span>Since
\nfederal judges are not elected and are appointed for life, they argue, this
\nremoves control over the government from the hands of the people.<\/p>\n
\nthis problem is the Supreme Court’s opinion in Griswold
\nv. Connecticut<\/a>, a case involving a challenge to a Connecticut statute that
\nbanned the provision of contraceptives to married couples. <\/span><\/p>\n
\nnothing in the Constitution that would explicitly prohibit a state legislature
\nfrom enacting such a law.
\n<\/span>Nevertheless, the Court stated that the “specific guarantees in the Bill
\nof Rights have penumbras, formed by emanations from those guarantees that help
\ngive them life and substance.” <\/span>One
\nof these penumbral rights, according to the Court, is a broad, general right to
\n“privacy.” <\/span>The Court found that
\nthe Connecticut contraception statute was an unconstitutional violation of the
\nright to privacy. <\/span>This laid the
\nanalytical groundwork for later constitutional challenges to other state laws
\ninvolving sexuality, including the right to abortion articulated in Roe
\nv. Wade<\/a>.<\/p>\n
\nright to privacy, it’s reasonable, I think, to be concerned about judges
\ninvalidating state laws based only on “penumbras formed by emanations.” <\/span>It’s fair to suggest that law should be
\ngrounded in text, precedent and history, rather than divined from “penumbras.”<\/p>\n
\nrole is always and only to “apply” laws enacted by democratically elected legislatures. <\/span>In fact, much of the law that governs
\nour everyday activities – including the law of contracts, property, torts, and
\ncriminal law – has its roots in the “common law,” which is a system of judge-made
\nlaw. <\/span>In the traditional formalist
\n\/ natural law vein, the judge’s role regarding the common law was to discern
\nand codify legal principles evident in the order of nature. <\/span>I suspect that this historic practice
\nvests more authority in judges than most conservatives today would appreciate.<\/p>\n
\nand regulatory law. <\/span>An act of
\n“interpretation” is never merely passive, as reader-response theory and other
\ncontemporary hermeneutical models demonstrate. <\/span>Although some judges purport to be “strict
\nconstructionists,” we can question whether there really ever is such a thing as
\n“strict construction” of any received text (as our frequent debates about
\nBiblical hermeneutics attest!).<\/p>\n
\njudgment over legislative and regulatory law, in that judges often must
\nevaluate whether these subsidiary norms comport with constitutional law. <\/span>Supporters of this concept of “judicial
\nreview,” which was articulated in the famous 1803 Supreme Court case of Marbury
\nv. Madison<\/a>, argue that this power provides an important check against
\nexecutive and legislative tyranny.
\n<\/span>This is particularly significant, they suggest, when the issue involves
\nhistorically disenfranchised or oppressed minorities, such as in the historic
\nschool desegregation case of Brown
\nv. Board of Education<\/a>.<\/p>\n