By Nathan Wente
"Where the people fear the government you have tyranny. Where the government fears the people you have liberty."
John Basil Barnhill (1914).
This quote is so simple and yet so profound in its truth. How then do we, the people, cause our government to "fear" us so that we may maintain liberty and live free? I believe the answer is in becoming educated about our rights as they are memorialized under the law, especially under the United States Constitution. Without knowledge and exercising of our rights there is no incentive for the government to honor them.
Fundamental to our structure of government are the 3 branches of government and the doctrine of separation of powers. The legislative branch creates law, the executive branch enforces the law, and the judicial branch applies, and is often called upon to interpret, the law. I offer the following example to illustrate what judicial interpretation looks like (I use a California example but this principle is universally applicable):
California Vehicle Code 23152(a) - It is unlawful for any person who is under the influence of any alcoholic beverage or drug to drive a vehicle.
This law seems fairly straight forward but there are some ambiguities. For instance, what does it actually mean “to drive” a vehicle? We might all agree that driving certainly includes someone operating their vehicle while it is moving upon a roadway. However, if the legislature neglects to define “to drive” the courts will be called upon to interpret this phrase.
Through judicial interpretation the California courts have defined the phrase “to drive” as, “where a person actively asserts control over a vehicle and takes every step necessary to resume travel along a public road.” This definition of “to drive” may now be used across the state. Officers may rely on it, attorneys will cite it, juries may be instructed by it, and courts will follow it. It is law to an equal degree as if it were law passed by the legislature.
The above example, although perhaps somewhat benign, begs the question; where is the line drawn between permissible judicial interpretation of law vs. impermissible judicial creation of law?
The following is one of many examples of judicial creation of law performed under the guise of judicial interpretation of law.
The last clause in the 5th amendment provides, “private property [shall not] be taken for public use, without just compensation.” From the face of this law it is clear that the Constitution protects against government taking private property without “just compensation.” Further, government is limited in that the property may only be taken for public use. The language is clear.
However, in 1906 the United States Supreme Court (USSC) began rejecting the “use by general public” test in determining whether a taking was constitutional under the 5th amendment. In other words, the USSC decided that the language, property may only be taken for public use, was too great a limitation on government takings. Instead, the USSC has fashioned its own standard in assessing the constitutionality of property takings on a case by case basis and, generally speaking, use its created standard that takings must satisfy a public purpose.
The USSC standard was most recently expressed in Kelo v. City of New London (2005). In this case the USSC sanctioned the taking of private property from its owner to give to a different owner based purely on the notion the transfer would serve an economic benefit. Supreme Court Justice O’Connor, in the dissenting opinion, correctly pointed out that if positive side effects are enough to render transfer from one private party to another constitutional, then the words "for public use" do not realistically exclude any takings.
I contend that this case is a perfect example of judicial creation of law. In roughly 100 years of legal evolution the USSC managed to “judicially interpret” the public use requirement of the 5th amendment out of existence. Judicial creation of law (aka judicial activism) is a threat to the principle of separation of powers because one branch (the judiciary) is encroaching on the powers of another branch (the legislative).
Perhaps some interpretation in limited circumstances may be necessary for consistency in application of law. However, a judiciary permitted by the citizenry to “interpret” away their rights is scary indeed. Judges, just like the politicians elected into the legislature, must be scrutinized. They should be encouraged to administer the law as it appears on its face. If a law needs amending then a legislative amendment is the proper remedy – not a judicial “interpretation.”
About the Author: While attending law school in California Wente clerked in the San Bernardino County District Attorney's Office for 2 years. After graduation he moved to Northern California and began working as a Deputy District Attorney in Siskyou County. Wente was employed there for nearly 3 years before resigning his position to become a defense attorney.
Wente’s primary motivation in switching from the role of a prosecutor to a defense attorney was, generally speaking, his disgust with Government operations and their refusal to respect civil rights. In short, it was Wente’s impression that Government's primary goal was to make arrests and get convictions, whatever the cost. According to Wente, achieving justice was simply an outdated ideal that may be worthy of lip service should the right circumstances arise.
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