And this was the one thing, he said, that Americans of all persuasions supported. And then he went on to say—and this is perhaps the most important thing because the topic came up this morning about judicial restraint—he said, "the Founding Fathers were clear on one issue: for them the question involved in judicial restraint was not and is not, 'will we have liberal or conservative courts?' They knew the courts, like the Constitution itself, must not be liberal or conservative. The question was and is, 'will we have government by the people?' And this is why the principle of judicial restraint has had an honored place in our tradition."

Judicial restraint involved deferring to the elected branches in those things that were properly within their domain, and limiting judges to interpreting the law and interpreting the Constitution as those documents were written, and not substituting their own judgment.

The opposite of judicial restraint of course, and of constitutional fidelity, which I like to think of as the essence of judicial restraint is, of course, judicial activism. Recently there has been some confusion sown by some opponents of constitutional fidelity about what judicial activism really is. As some scholars have tried to muddy the waters by redefining judicial activism as, "any act by the courts where they would strike down Congressionally-enacted statutes." It's interesting to note that they talked about judicial activism only as referring to striking down Congressional acts. It absolves them of having to analyze the Warren Court, which of course struck down state statutes—dozens of them in a single blow. In any event, as former Chief Judge of the 4th circuit, Mike Luttig said—he referred to this idea that the scholars have tried to redefine judicial activism as sophomoric, because, under this standard, there would be no way for the Supreme Court to strike down statutes that were actually at odds with the Constitution, which really is the basis for proper judicial conduct. In other words, this is really a red herring to throw off what judicial activism really is. Judicial activism is committed when judges substitute their own policy preferences, their political biases, or their own personal views for what the Constitution or statutes actually say. And that's the essence of the problems, many of which were referred to this morning.

We have a very good example in a recent case, just a couple of years ago, of judicial activism, and that was in the case of Kelo v. The City of New London. There, the Court, on their own—or a majority of the Court in a 5-4 decision—decided that "public use" would be expanded to mean, "public purpose," in which they would allow the city to take the home of a private citizen and give that property to another private entity only because that new entity would erect buildings that would bring more tax revenues to the city—a direct violation of what the words, "public use" had always meant up until that time and as the Founders had in mind.

One of the most egregious decisions which vastly expanded the power of the federal government was during that period referred to this morning under the leadership, at that time, of Franklin Roosevelt. That, of course, was a case we all know from our law school days, Wickard v. Filburn. As we know, Article I, Section 8 gives the federal government, through Congress, the power to regulate commerce with foreign nations, and among the several states and with the Indian tribes. But when the Court construed federal power to cover any activity that might affect commerce, such a broad definition means that today virtually nothing that is done is beyond the power of the federal government.

Well, perhaps what might be very shocking to the Founders if they could observe our nation today would, of course, be the enormous expansion of federal authority over the past 80 years, and that it happened at the expense of the states, which the Founders sought to protect in the Constitution. In other words, when judges make the laws or change the laws, they are usurping the power of the legislature, and that is judicial activism.

It's interesting to note that Chief Justice Marshall promulgated the concept of judicial review, as we heard. But he was very definite on the limits of judicial power, and that is why he said, "that judicial power, as contrasted from powers of the laws," including the Constitution, "has no existence. Courts are the mere instruments of the law and can will nothing. When they are said to exercise a discretion, it is a mere legal discretion, a discretion to be exercised in discovering the course prescribed by law; and, when that is discerned, it is the duty of the Court to follow it."

And this was the key thing that ought to be the rule plastered on the walls of every judicial chamber: judicial power is never exercised for the purpose of giving effect to the will of the judge; always for the purpose of giving effect to the will of the legislature, or in other words, to the will of the law.

Judges also commit judicial activism when they usurp executive authority. Today we have the spectacle of judges running all kinds of executive functions—prisons, schools, even police departments, and many other executive agencies. That they have neither the legitimacy nor the competence to perform such a role doesn't seem to bother them. This is despite what John Marshall himself said on this subject, when he declared, actually in Marbury v. Madison, that, "the province of the court is solely to decide on the rights of individuals, not to inquire how the executive, or the executive officers, perform duties in which they have a discretion. Questions in their nature political, or which are, by the Constitution and the laws, submitted to the executive can never be made in this court."

Numerous examples of judicial activism that would seem strange to the Founders exist today, but they particularly stand out in view of the concerns that the gentlemen who were there in that hotel, in that room in 1797 in Philadelphia, had in mind concerning the freedom of the people and concerning the ability of states to act. In the 1960s in the cases of Baker v. Carr and Reynolds v. Sims, as you remember, they required the states to turn the structure of their legislatures, basically, upside down. The states had organized legislatures before the Constitution was even written and before the national government was formed. As a matter of fact, the two-tiered legislature with the two houses was the model for the Constitutional Congress itself, having one house based on political subdivisions and the other based on a portion of population. And yet, this 1960s legislation required both houses, both the representation of both houses to be allocated on the basis of population.

I happened to be coming into state government at that time under then Governor Reagan, and I can assure you that this not only overrode the authority of the states and their ability to determine how they would run their legislative bodies, but also it changed dramatically the political balance and the civic culture of the states throughout the country.

Another example, of course, involved criminal procedure. In 1961 in Mapp v. Ohio, and in 1966 in Miranda v. Arizona, the Supreme Court literally nationalized criminal procedure and imposed requirements relating to the admissibility of evidence that had never been thought before that time to be within the province of the federal government. This was in direct violation of the promises contained in The Federalist Papers, where Hamilton wrote in Federalist #17, he said, "there is one transcendent advantage belonging to the province of the state governments which alone suffices to place the matter [of relative between the state and federal government] in a clear and satisfactory light. I mean the ordinary administration of civil and criminal justice. This of all others," he said, "is the most powerful, most universal and most attractive source of popular obedience and attachment."

Well in recent years we have had—and this was referred to earlier this morning—we have had another way in which the court has gone far beyond anything that the Founders would have envisioned in their wildest dreams back in the 18th century, and that is the use of foreign law as a basis for interpreting the Constitution.

We've had Justice Breyer, for example, talking about foreign decisions from Jamaica and Zimbabwe and India. We've had Justice Stevens talking about how they should be subject to, or use a basis for their rulings, the world community. We've had Justice Kennedy talk about, in one decision, referring to as support for his views the Court of Human Rights in Europe and the European Convention on Human Rights. And we've also referred to, he's referred in a case to what he called foreign law and international materials including treaties that the United States Senate has not ratified as, "instructive interpretation of the Eighth Amendment."

Obviously, if you look at what the Founders had in mind, it is hard to understand how the Constitution could be subject to interpretation based on foreign law such as this. Indeed, Justice Scalia, with his usual, very, let's say, "active" statements said this, "the prize for the Court's most feeble effort to fabricate a national consensus must go to its appeal to the views of members of the so-called world community. Irrelevant are the practices of the world community, whose notions of justice are thankfully not always those of our own people." And then he went on to say in another case, "The Court's discussion of these foreign views is therefore meaningless dicta. Dangerous dicta, however, since the Court should not impose foreign moods, fads, or fashions on Americans."

The use of foreign decisions, foreign law, and foreign doctrine, legal doctrine, is of course a fraudulent way. But it is even worse, because the Court too often has had a very selective and subjective use of foreign law, citing only those instances that agree with the particular justices' position and ignoring foreign law, often more voluminous, that would be taking the opposite's position. Again, Scalia says, "to invoke alien law when it agrees with one's own thinking, and ignores it otherwise, is not reason decision-making but sophistry." Well, this expanding with the result of this use of foreign law has been to expand judicial discretionary power as well as to erode United States cultural and legal sovereignty. It reminds one many times when the judges do this, and why do they do it? They do it, of course, because they can't find any basis in United States law in the Constitution, or in any precedent, and so they have to refer to foreign law if they are to try and make some basic case for their rather wild views. It reminds one very much about the old story about the drunk at midnight leaning against a lamppost—he is seeking support rather than light.

More recently, the Court has done something that even for the last two-hundred years would have been thought to be far beyond the imagination of most scholars, and that is their invasion of the province of the Executive and Legislative branches in regard to the conduct of war. Writing in his concurrence in Youngstown Sheet and Tube Company v Sawyer, shortly after the end of World War Two, Justice Robert Jackson stated that, "executive decisions concerning defense in foreign policy are not judicial, but should be left to the President and Congress," and he gave his reasons why. He said such decisions are wholly confided by our constitution to the political departments of the government, the Executive and the Legislative. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility, and which has long been held to belong in the domain of political power, and not subject to judicial intrusion or inquiry."

Beginning in 2004, and in four major cases since that including one in that year, the Supreme Court has expanded its power and invaded the province of the executive in Congress to disrupt practices and policies that go all the way back to the War for Independence. Again, to quote Justice Robert Jackson, this time in Johnson v. Eisentrager,

Granting access to the civilian courts to enemy prisoners is contrary to common sense as well as contrary to the Constitution." He said this: "Such trials would hamper the war effort and bring aid and comfort to the enemy. They would diminish the prestige of our Commanders, not only with enemies, but with wavering neutrals. It would be difficult to devise more effective fettering of a field Commander, than to allow the very enemies he has ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home. Nor is it unlikely that the result of such enemy litigiousness would be a conflict between judicial and military opinions highly comforting to enemies of the United States.

In the most recent case, Boumediene v. Bush, the Court even went so far as to grant the enemy aliens captured in war the writ of Habeas Corpus as a defense that they could use against their capture. The 5-4 decision caused Justice Scalia to explain in his dissent the dire consequences of such judicial adventurism. Justice Scalia said, as stated in his dissent that was joined by the Chief Justice, Thomas, and Justice Alito, he said that, "Today, for the first time in our nation's history, the Court confers a constitutional right to habeas corpus on alien enemies, enemies that are detained abroad by our military forces in the course of an ongoing war." And then he continued, "the game of bait and switch, that today's opinion plays upon the nation's Commander-in Chief, will make the war harder on us. It will almost certainly cause more Americans to be killed. That consequence would be tolerable if it was necessary to preserve a time-honored legal principle vital to our constitutional Republic. But it is this court's blatant abandonment of such a principle that produces the decision today."These examples of judicial activism belie the Hamiltonian notion that he expressed in Federalist #78, when he said that the judicial branch would be the least dangerous to the liberties of the people, because he said, "the judiciary has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society, and can take no active resolution whatever." Certainly, modern history shows us that today that's not the case. How then do we revive the Constitution in the eyes and to the thoughts and visions of the Founders? I would suggest to you that our morning speakers today have provided many of the answers to this question. One is of course as was mentioned in the excellent talk by Jeff Sikkenga, an excellent talk in which he talked about the necessity of the other branches including the executive, asserting their authority onto the Constitution, both to act and to interpret the Constitution itself. And this is something that is, I think, as he pointed out with the previous presidents, who exerted that authority, a very important aspect of restoring the Founders' vision of the Constitution. A second thing as was talked about by both Dean Bilionis and Mrs. Long was of course presidential appointments and how important they are. And Ed Whelan gave us some important aspects of how important this is as far as the future is concerned, this matter of appointments.

There's one other aspect that I think is important, and that is educating public opinion. And this as to what the role of the Court is. It is true, as was pointed out by Jeff, that the public generally adopts the views, that as he pointed out with regret, too much of the government itself holds, and that is that in fact in matters of the Constitution the Supreme Court is supreme in every way. As a matter of fact, the Supreme Court was so arrogant in the case of Cooper v. Aaron, that they themselves said that the decisions of the Supreme Court are the supreme law of the land. Well, anyone who has read the Constitution knows that's not true, and that there is a basic distinction between Constitutional Law, the decision made by the court, and the Constitution itself.

I had an interesting experience in a speech I gave. In talking about the Constitution, I pointed out that in some law schools the Constitution is hardly ever taught, and that Constitutional Law is all that the law schools put out. I said that in the leading Constitutional Law casebook, the Constitution isn't even referred to or isn't even a set out in print except when you get to Appendix H. About two weeks later I got a letter from a professor, who will go unnamed, who said, "You talked about the leading Constitutional law case book, so you must have meant mine." And he said that, "I want you to know that in the next edition I'm moving the Constitution itself up to Appendix A."

But I would suggest to you today in this gathering that the Federalist Society, the legal profession generally, has a real job to do in educating the public on what the role of the various branches are in regard to the Constitution, and also that the Supreme Court is supreme in properly carrying out judicial functions but is not the supreme branch of the government, having dominion over the other two branches or of the states themselves. Ed Whelan really talked about what the stakes are and also, the views of the various presidential candidates. Every voter should consider this in the next election. And it was interesting to note in the memo that was passed out on the table there when you registered today that a good portion of the public, over seventy percent of the public, does consider the Supreme Court and judicial opinions important or very important or somewhat important, and only 23% say that it would not make the top ten list of the things that are important as they go to the polls. I would suggest to you that we hope they learn what is at stake, not just in this election, but in terms of the continuing effort because, indeed, in this election, as Ed pointed out, whatever the primary candidates agree or disagree on, there can be nothing which they disagree more than on what kind of judges should be on the Supreme Court, and on this idea of judicial fidelity versus judicial activism. The Founders gave us a truly great Constitution. To paraphrase William Gladstone, it was the most perfect document ever struck in the history of mankind. We in the legal profession have a special responsibility to revive the Constitution as the Founders adopted it some two centuries or more ago. And it is our duty to preserve, protect and pass on to future generations this magnificent founding document which has done so much to preserve the liberty of our people, and which we need to continue to be not only a beacon and an example to other nations, as it has been over the years, but something that will preserve liberty for all the future generations in this country. Thank you.

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