THERE is a recent trend in the United States of federal judges more and more often abandoning their proper roles and allowing personal beliefs to interfere and influence rulings in the absence of a clear and established legislative precedent. On Wed., Sept. 14, for example, a federal judge once again ruled the statement "under God" in the Pledge of Allegiance to be coercive when recited in a school setting. Similarly, in June, the Supreme Court ruled that eminent domain could be extended from its traditional meaning to include seizing homes for private, commercial development. Finally, in the recent debates over who will replace Justice Sandra Day O'Connor and the late Chief Justice William Rehnquist, this issue is clearly brought to light as the focus is on personal stances rather than records as judges who follow rather than invent the law. The question cannot but come up, therefore, as to what is that proper role of these judges. What questions should we be asking of our nominees?
As CNN.com reported last Wednesday, Judge Lawrence Karlton declared the phrase "under God" to make the Pledge of Allegiance unconstitutional and "said he would sign a restraining order preventing the recitation of the pledge at the Elk Grove Unified, Rio Linda and Elverta Joint Elementary school districts in Sacramento County, where the plaintiffs' children attend." The issue involved here is, of course, that the Constitution implies a separation of church and state. Karlton's ruling, based on a 2002 ruling by the 9th Circuit Court of Appeals and the 1992 case Lee v. Weisman, is that the religious implication of "under God" can be considered a coercive affirmation as teachers are government employees.
What, however, does the Constitution actually say about this issue? Though separation of church and state is what most people think of, the First Amendment actually requires that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Despite Karlton's argument, anyone thinking back to their elementary, middle and high school days will remember that saying the Pledge is not mandatory or coercive. Instead, it is a show of respect for a nation that allows such widely ranging differences of opinion.
There is a deeper issue involved, however, which is one that has plagued the U.S. legal system since its inception: How loosely can a federal judge interpret the Constitution? How much leeway does a judge have in his or her ruling? After all, their job is to interpret the law in varying situations, not to effectively create new laws when there is no precedent.
In June, the Supreme Court ruled in a very controversial case that the city of New London, Conn. could seize homes under eminent domain to be sold for private development. Though the city's goal of improving the area is noble, their methods go far beyond any previous definition of eminent domain. Under normal circumstances, eminent domain is invoked for massive federal projects such as highways or reservoirs. In this case, however, judicial activism has created a new and very different legal status allowing the government to seize property for basically any reason it wants. Fortunately not all of the justices agreed, however.
All of this brings to light important questions about the effective scope of our legal system -- all the more important given President Bush's task of replacing a justice and the chief justice. As a result of judicial activism, the Heritage Foundation points out that "the political views of judges -- or their perceived views -- rather than their proven adherence to the rule of law is fast becoming the criterion for Senate confirmation." In other words, we are forced to ask, "what does he or she think about this issue?" when instead we should be asking "will he or she attempt to create new mandates or circumnavigate existing, unclear laws?"
The purpose of the United States judiciary system is to apply and interpret the laws set by the Congress to varying situations. Its purpose is not, however, to invent new law in the absence of absolutely clear and specific legislative mandates or to expand those mandates well beyond what they actually say. In the "under God" and eminent domain cases, this is exactly what the court has done. Unelected, permanent officials have created new precedent rather than allow the elected legislature to settle these issues. This makes it all the more important, therefore, that President Bush and the current Senate confirmation processes ask the correct questions of the nominees. Though John Roberts for one appears not to be of this activist mindset, it is critical that we make sure all current and future appointments follow suit. The role of the judiciary system is to adjudicate, not to legislate.
Allan Cruickshanks' column appears on Fridays in The Cavalier Daily. He can be reached at acruickshanks@cavalierdaily.com.
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