I will not comment here on the substantive aspects of his speeches. Whether or not this polity ought to embrace or suppress the institutionalization of marriage or marriage like institutions among people of the same sex is part of a larger debate among the members of the Republic’s polity respecting the nature and character of its social ordering. Those sorts of debates have rocked this nation almost since its inception and has touched on all manner of what had been highly charged debates involving slavery, language, religion, assimilation, and the rights of women. This issue is not different, and I expect some sort of resolution necessarily will be had for good or ill at the political level (including perhaps at the ultimate political level—the inclusion of socially coercive provisions in the national constitution). The value of that exercise is not my focus here.
Instead, I wish to comment on the President’s insistence on laying the “problem” (this time of gay marriage but it could be anything else; it doesn’t really matter) at the feet of a judiciary he charges with acting beyond the limits of its own powers. The courts, the President suggest, are not acting like courts, but like legislatures. To the extent that they indulge this penchant, they act extra-constitutionally. And those actions are not only wrong, but they might be void. Had he thought a little bit about it, he might also make a connection between this idea of “activist judges” and what the Supreme Court itself suggested (at least with respect to the actions of the Supreme Court of Florida in Bush v. Gore, 531 U.S. 98 (2000); available at http://www.law.cornell.edu/supct/html/00-949.ZPC.html ) in the election that first brought him to office. I have written about this in a slightly different context (Larry Catá Backer, “Race, 'the Race', and the Republic: Re-Conceiving Judicial Authority After Bush v. Gore,” Catholic University Law Review 51(4):1057-1114 (2002) available at http://www.personal.psu.edu/lcb11/complete%20articles.htm. There is a very definite idea underlying these references to “activist judging” and its harm to the state. That idea would posit that all of the lawmaking power is vested in the state, and the institutions of the state solely authorized to make law are its legislature (assisted by its executive). Judges are to serve that law making power by confining their activity to interpreting law, in a narrow sense, and to otherwise leave law to the lawmakers.
Sadly, what neither he nor the people who put these ideas in his head think about is that the arguments he is now making are very similar to those made several hundred years ago, not in the United States, but in Hampton Court, and not by an American President but by a king—James I of England and VI of Scotland. In 1608, James I/VI began what would ultimately end with the head of his son on a pike—the quest for an acknowledgement that lawmaking power was vested in the king and that he had the power to make (or unmake) the whole of the Common Law. A member of his judiciary, Francis Bacon, agreed, and in a well known essay suggested that “Judges ought to remember that their office is jus dicere, and not jus dare; to interpret law and not to make law, or give law; else it would be like the authority claimed by the Church of Rome, which, under pretext of exposition of Scripture, doth not stick to add and alter, and to pronounce that which they do not find, and, by show of antiquity, to introduce novelty” (Bacon, Francis. 1612. Essays and New Atlantis. No. 56, 225. Roslyn, N.Y.: Walter J. Black, Inc. (for Classics Club editions 1942)).
To this argument the great Common Law judge Edward Coke responded for the judiciary of England. In an equally well known set of writings, suggesting that the law making power of neither King (nor later King in Parliament) was absolute, and that such power to legislate as they might have was limited by the Common Law that stood apart from the legislative power of the state. The rights guaranteed by the great Common Law, starting with the principles of Magna Carta, could not be undone by the state but reflected the ultimate protection of the people against its agents. This great law was to be safeguarded by the judiciary. And thus in Dr. Bonham’s Case, Coke wrote reminded the us that “when an Act of Parliament is against Common right and reason, or repugnant or impossible to be performed, the Common Law will controll it, and adjudge such Act to be void” (Bonham’s Case 1610 275). Common Law stood against the lawmaker, and the judiciary was its great guardian. It was Coke’s notion of the limitations of state power, rather than that of Francis Bacon idea that the law was always subject to the whim of the legislator, that animated the Founders of the American Republic. While the English quickly embraced the idea of Parliamentary supremacy in the 18th century, the American colonial experience was more closely attuned to Coke’s ideas of “higher law” expounded by the courts, as a bulwark against state power and as a limitation on the power to legislate. It was in part to protect their Common Law rights as free English subjects that the colonists first sought to restrain Parliament, and then to rebel against the usurpations of that legislature when its acts were enforced by the Crown. While the great protection of these “higher law” standards was initially left to the “High Court of Parliament” (in Coke’s terminology), that idea eventually in the United States became vested in the judiciary when (unlike England) the judicial function was detached from the workings of Parliament.
Thus, when President Bush criticizes the judiciary, he stands in the shoes of James I, as an advocate of the supremacy of the legislator over law, and speaks the language of Francis Bacon, the king's apologist. One should remember, that this criticism of the judiciary is radical, that the Republic was founded by those who held to the inverse principle—of law over legislator, and who saw in the descendants of the Law Lords a protection in law against both Crown and Parliament. If the President dislikes the Law, then let him convene the people to reform it. The Constitution can always be changed when the people muster a sufficiently strong political will to do it.
When the President seeks to effect a similar result by hobbling the judges, he goes against a strong founding principle of the Republic. It is also undemocratic, substituting the lawmakers for the people in the construction of the fundamental rights of citizens. Just as Coke did, and later Locke (Locke, John. 1690. Second Treatise of Civil Government. Oxford: Penguin Classics (1964)), I prefer a stronger judiciary occasionally making errors of interpretive judgment, than a lawmaking power with unmake the law at its leisure.
But who is there to play Coke against President Bush's James I? The answer is surprizing perhaps--the current Chief Justice of the Supreme Court of the United States, John G. Roberts, Jr. In an address to the American Law Institute on May 15, 2006, the Chief Justice had this to say:
"I do want to touch briefly, this morning, on a topic that has been in the news lately, and that is the independence of the judiciary and what seems to many judges at least to be ever-escalating rhetoric attacking judicial independence. . . . The one thing we cannot do is have attacks on judges, whether in the form of insufficient resources, insufficient pay, or other more direct attacks that are motivated by disagreements with judicial decisions." John G. Roberts, Jr., Remarks at the Opening Session of the American Law Institute, Washington, D.C., May 15, 2006.The Chief Justice was careful to tie notions of judicial independence to notions of the independence of law. Judicial independence, the Chief Justice suggested, is "vital . . . to implementing the rule of law." Id. This relationship between independent judiciary and law is something that should not be taken for granted. Id.
Like the Chief Justice, I have no quarrel with the President’s attempt to seek a political settlement of a social issue that remains quite contentious. I have even less quarrel with attempts to hard wire a solution to this social controversy in our constitution (though I wonder about the great fuss made over this issue in particular). But I would not like to see this issue used as a subterfuge for undoing the great foundational construction of the Republic. The campaign against “activist judges” is thus (and ironically so) both radical and liberal from an 18th century standpoint. It does not reflect the original understanding of the Founders of the differences between the relationship of law to state in the colonies and as it had evolved in England. The President is likely unaware of the consequences of this latest radical liberal crusade of his. But radical it is, in ways that strike against the heart of perception of right reason on which this Republic was founded. And that is a shame.