As the Supreme Court prepares to hear argument in the Ten Commandments cases, conservatives can be heard voicing their familiar complaints against "judicial activism," the supposed tendency of judges to override majority rule by writing their own subjective beliefs into law.
One of the cases arose in Kentucky, where framed copies of the Commandments hang in a courthouse hallway, and the other in Texas, where a stone monument six-feet high, carved with the Commandments' text, adorns a walkway linking the state's capitol and highest court. In both cases, plaintiffs contend that the First Amendment's ban on the establishment of religion forbids such displays on government property.
If the Supreme Court were to order the displays removed, would it be overriding the will of the majority? Most certainly. Opinion polls show that 70 percent of Americans approve of displaying the Ten Commandments on public property.
Is it therefore true that the Supreme Court would be improperly writing its subjective beliefs into law? Not at all. The Court would merely be doing its constitutional job.
This nation was founded on the principle that government exists solely to protect individual rights to life, liberty, property, and the pursuit of happiness. The Constitution conforms itself to this principle when it places individual rights off-limits, beyond the reach of even the most lopsided democratic vote.
This overriding purpose is reflected in the structure of American government, whose three distinct branches are subject to "checks and balances" that permit and encourage each branch to restrain the others' powers. To offset the ever-present temptation in all three branches to curry favor with majorities by infringing upon individual rights, courts are endowed with a counterbalancing power to declare such infringements unconstitutional.
This power is known as judicial review.
Judicial review, properly conceived, is merely one method among many by which judges resolve legal conflicts. In the courtroom, for example, judges resolve conflicts between witnesses: Did Smith run the red light, or not? They also resolve conflicts between laws: Was Smith's violation of the red-light law justified because he was obeying another law giving right-of-way to an ambulance?
Ultimately, judges must also resolve conflicts between the Constitution and the actions of Congress, the President, or the states--especially when those actions purportedly violate individual rights. Constitutional rights furnish an objective standard by which judges can evaluate governmental actions and, when necessary, halt them.
In case after case, the Supreme Court has courageously exercised judicial review. Faced with mandatory prayer sessions in public classrooms, the Court responded with Engel v. Vitale in 1962, holding that such prayers violate the First Amendment. Faced with state laws forbidding abortions, the Court responded with Roe v. Wade in 1973, holding that such bans violate a woman's right to privacy. And faced with state laws imprisoning homosexuals for pursuing sexual pleasure, the Court responded with Lawrence v. Texas in 2003, holding that such laws violate an individual's right to liberty.
Conservatives decry such decisions because no rights to prayer-free public education, or abortion, or homosexuality, are expressly listed in the Constitution. But the Constitution cannot be interpreted biblically, as an exhaustive catalog of rules revealed by a superior authority, like a secular Book of Leviticus.
Instead, the Constitution must be interpreted objectively. Although the document contains some simple rules (such as the Presidential minimum age of 35) presenting no interpretive challenge, it also contains carefully formulated principles requiring future generations to identify particular applications that were unknown or unknowable in the 1780s. For example, First Amendment "freedom of the press" protects not only newspapers with printing presses but also television, the internet, and other media not yet invented. Similarly, the Constitutional principle of individual rights embraces blacks, women, and others whose rights as individuals the Founders did not fully understand.
For these reasons, conservatives' demands for so-called "judicial restraint"--voluntary refusal by judges to exercise their review powers--must be rejected. Because courts provide a last line of defense against the tyranny of the majority, any such judicial self-emasculation would pose a deadly threat to our liberties. Just as Congress would be wrong to renounce its lawmaking power in the name of "legislative restraint," so the judiciary would be wrong to surrender its precious review power in the name of "judicial restraint."
If the Supreme Court finds that state-sponsored displays of the Ten Commandments violate the First Amendment's guarantee of freedom from the establishment of religion, the Court should unapologetically exercise its power of judicial review and order their immediate removal.