Pelosi's Constitutional Confusion
By Cathy Ruse
Cathy Ruse is Senior Fellow for Legal Studies at Family Research Council. This article appeared on Townhall.com, April 30, 2012.
It's frustrating to watch high-ranking Liberals get something so fundamental, so wrong.
House Democratic Leader Nancy Pelosi recently accused Republicans of hypocrisy when it comes to the courts. As Pelosi describes it, Republicans have long been antagonists of "judicial review" but suddenly embrace it now that Obamacare hangs in the balance. Her own Party, by contrast, has always supported "an independent judiciary."
Everyone wants "an independent judiciary" - that's just another way of saying an uncorrupt, unbiased court system. Liberals like to pretend that conservatives are "threatening an independent judiciary" whenever we disagree with a court's ruling, but reasonable people understand that to be what it is: Free Speech. (On the other hand, President Obama's strange "message" to the Court about upholding his healthcare law, while they were deliberating on it, might fairly be called a threat, but that wouldn't fit Pelosi's narrative.)
It's the misunderstanding about "judicial review," however, that's most frustrating - or rather, the apparent Liberal misunderstanding of the Conservative understanding of it.
Judicial review refers to the ability of federal courts to review acts of Congress and determine whether they comport with the Constitution. It was affirmed in Marbury v. Madison in 1803, and this Conservative hereby re-affirms it now.
Dear Liberals, there is no effort on the Right to get rid of judicial review.
It's judicial activism that's the problem -- when judges go beyond interpreting the law to re-creating it in their own image.
The chief modern example of judicial activism is Roe v. Wade, where seven members of the Supreme Court invented a right to abortion that was nowhere found in the Constitution. Justice Byron White, in dissent, said that the majority of the Court had engaged, "not in constitutional interpretation, but in the unrestrained imposition of its own, extraconstitutional value preferences."
Judicial activism is a serious transgression, and undermines the very basis of our representative democracy. That's why, when judges do this routinely, legislators look for ways to stop them, including proposals to limit their jurisdiction over some matters. None of these efforts is aimed at eradicating judicial review, and none has ever succeeded.
Our problem, Ms. Pelosi, is not when federal courts strike down acts of Congress. It's when they pretend to be Congress.