Founding Facts: Original Intent

The Judiciary

“The three branches of government have different powers because too much concentrated power becomes tyranny. America’s founders believed that keeping these branches and their areas of power separate was the single most important way to prevent tyranny and protect liberty.

Under Article I of the Constitution, the legislative branch makes laws; under Article II, the executive branch enforces those laws; under Article III, the judicial branch interprets them. Legislatures, rather than courts, must make the laws because legislators represent, and are most accountable to, the people. The Declaration of Independence says that government power requires the people’s consent to be legitimate. This happens when elected legislatures make the laws. Those laws then best reflect the people’s values and how they want to be governed.

If legislatures make the laws, what does it mean for the judicial branch to interpret those laws? First, we know that interpreting and making laws are two different things, assigned to two different branches of government. If judges cross the line into making laws, they do not have the people’s consent, their power is illegitimate, and the result is judicial tyranny.

Judges cannot actually enact new statutes or literally insert new amendments into the Constitution. Their ‘lawmaking’ is more subtle, but just as dangerous. They leave the words alone, but just change the meaning. They have the same attitude as Humpty Dumpty when he said to Alice: ‘When I use a word, it means what I choose it to mean—neither more nor less.’”

(from the booklet “Ending Judicial Tyranny”)

A classic example of judicial overreaching occurred in Iowa just a couple years ago. The people of Iowa passed a state constitutional amendment defining marriage as between one man and one woman only, but the Iowa State Supreme Court declared the amendment unconstitutional, because of their unique interpretation under some clause. From that interpretation, they extracted a “right” of homosexuals to marry, and essentially threw out what the people passed, with the force of law, thus in effect making a new law.

What can be done? The same Iowa case holds some answers: in 2010, a state pro-family mounted a campaign to oust three of the state Supreme Court Justices, and succeeded in replacing them with non-activist, pro-family judges. We may have gotten a lot of things about the Founders’ original intent wrong, but we can still fix things by working to throw out activist liberal judges, for example, and to elect pro-family, constructionist judges.