Last Sunday, Attorney General Mike Cox
appeared in a guest column in the Detroit Free Press. Ostensibly,
his intent was to comment on the recent failure in the state House
of a statewide constitutional amendment that would ban same-sex
marriage. However, it quickly became evident that Cox had a
different agenda: Though he fails to mention it by name, the column
is clearly a condemnation of “judicial activism,” or
the practice of judges basing their rulings not on the
Constitution, but instead on their own value systems.
- Daniel Adams
I have heard it all before — for the religious Right,
which has been on the receiving end of 40 years of progressive
court rulings, the phrase “judicial activism” has been
sharpened into a rallying cry. Roe v. Wade? Judicial activism.
Right to privacy? Judicial activism. The end of antisodomy laws?
Judicial activism. The phrase has become the embodiment of all they
perceive wrong with our system of government. The cure? Referenda.
Let the masses decide.
In fact, most of the responses I received from my last column,
“Tyranny of the Majority,” condemned me for what some
felt was my tacit approval of judicial activism. Granted, judicial
activism is an issue. Technically defined, it should be something
that all Americans oppose as a threat to our system of checks and
balances. But like so many other previously useful definitions, the
phrase “judicial activism” has come to mean many things
to different people. For the Left, judicial activism was a
Republican-appointed U.S. Supreme Court ending the recounts in
Florida, leading to George W. Bush becoming the president. For the
Right, judicial activism is best embodied in the landmark case
Griswold v. Connecticut, which held that there is a constitutional
right to privacy.
However, any accusation of judicial activism must take into
account our Constitution’s status as a living, evolving document.
It must be — the framers simply didn’t have a Ouija
board around that could predict all the societal issues that would
arise over the lifespan of our then-young nation.
But judicial activism isn’t what I want to write about. I
want to write about Mike Cox.
Mike Cox has much bigger problems than judicial activism —
he doesn’t seem to have a clue as to how our judicial system
and our republic were intended to function.
Let’s start with the basic stuff: Having apparently
skipped most of ninth-grade government class, Cox mentions in his
piece how important he feels it is that we have a public referendum
on same-sex marriage in order to “preserve the rule of law
necessary for our constitutional democracy to prosper.”
Two problems: first, we’re a constitutional republic, not
a consititutional democracy. Second, his belief in the rule of law
clearly contradicts the statement that same-sex marriage is
“too important to be left to one judge.”
Besides, even if we’re to buy his argument that direct
democracy is acceptable — indeed, preferable — in this
instance, it must be understood that the people can effectively and
efficiently run the government. Cox fails to conclusively establish
even this. Referring to a Free Press editorial that hailed the
defeat of the amendment, Cox called it “a classic example of
a disingenuous school of rhetoric — use charged words in such
a way to lead a reader to believe that no rational person could
ever have a contrary view.”
Translation: People are stupid. Don’t confuse them.
But Cox can’t seem to make up his mind on this, later
writing, “The genius of America and the animating force of
the American Revolution was our belief in the collective wisdom of
all our citizens and a rejection of rule by would-be philosopher
kings.”
Translation: People are smart. Give them power.
Which is it, Mr. Cox?
Judicial activism isn’t the issue here.
The issue here is that our attorney general can’t get his
amendment through a Republican House.
The issue here is that he wants to sneak around the judicial
branch instead.
The issue here is that our attorney general doesn’t seem
to understand how our system of government was intended to
function.
Mr. Cox, we elect representatives to legislate. By advocating in
favor of pure democracy over our republic, Cox builds an argument
that is inherently unconstitutional, and by advocating in favor of
direct democracy even at the expense of equality, Cox has built an
argument that is potentially discriminatory. The process of
judicial review has always been an important check on the power of
that legislature, even when it has ruled against the will of the
majority.
Worst of all: Mike Cox is the Michigan attorney general, and I
shouldn’t have to remind him of any of this.
Adams can be reached at
“mailto:dnadams@umich.edu”>dnadams@umich.edu.