Commentary
Oregon Daily Emerald
Tuesday, April 5, 2005
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■ In my opinion
Judicial Factivism
These days, just about every news
cycle conservative pundit bellyaches
about "judicial activism." Two recent
examples include the Supreme Court
striking down the death penalty for
minors and the Terri Schiavo ordeal.
Over and over again, the clarion
call of Rush Limbaugh's dittoheads
and the Hannitized masses is that the
judiciary is overstepping its authority
by "writing laws instead of interpret
ing them." Right wing greats Pat
Robertson and Mark Levin have both
recently come out with books decry
ing the role the judiciary has taken
upon itself.
It's easy to understand the frustra
tion. Unelected officials with lifetime
tenures often have the final say on
matters of grave importance. In the
two examples I mentioned above,
judges are literally making life and
death decisions for which they cannot
be held accountable.
At the same time, it's hard to take
these critiques at face value when
one considers the political self-inter
est of those who are raising them.
Republicans control the legislature
and the executive. Therefore, it
would be in their political best inter
est to limit the power of the judiciary
so that the branches of government
they control could exert more influ
ence. Back in the 1940s, FDR had a
similar beef with the judiciary be
cause it wouldn't let him run ram
pant with his socialistic New Deal.
So are Republicans really concerned
about the role of the judiciary or are
they just making rhetoric in their
own political best interest? To be
perfectly honest, I'm not sure.
For weeks now, I've wanted to
write a column on this debate but
have been unable to figure out which
side of the argument I come down on.
My first stop was, of course, the
Constitution. I re-read the Constitu
tion, paying particular attention to Ar
ticle III, which establishes the power
of the judiciary. I drilled the words for
nuance, parsing it every which way I
GABE BRADLEY
THE WRITING ON THE WALL
could. This soon led to frustration,
however, because the judiciary is the
most vaguely defined of the three
branches of government.
Not to be deterred, I turned to
"The Federalist" in which Alexander
Hamilton comments on the judiciary
in Nos. 78-83. But this commentary
was mainly concerned about when
and where the judiciary would have
jurisdiction.
Neither the Constitution nor "The
Federalist" specifically define the lim
its of the judiciary's power to interpret
and apply the law. It was this vague
understanding of the judiciary that
left the door wide open for Marbury
vs. Madison, the 1803 Supreme Court
case which established the principle
of judicial review.
It was in the Marbury case that the
Supreme Court took upon itself the
power to declare an act of Congress to
be a contradiction to the Constitution,
and therefore null and void. The
Court set itself up as the final arbiter
of the Constitution, appropriating a de
facto veto that it has wielded for the
past 200 years.
When I first learned about the
Marbury case in high school, I was
told that the Court needed to clarify
its role in our system of government
because it was so vaguely defined in
the Constitution. I accepted it as fact
from that day to this. But when I
was thinking about the situation this
week, the 10th Amendment came
vigorously to mind.
“The powers not delegated to the
United States by the Constitution or
prohibited by it to the States, are re
served to the States respectively, or to
the people. ’’
If something is not specifically pro
vided for in the constitution, then an
act of the state governments or the
people, represented by Congress, is
required to make it law. Because the
limits of the judiciary's power to inter
pret and apply the law is not specifi
cally defined in the Constitution, the
power to define these limits belongs
to the States or to the people. It's not
the judiciary's job to define its own
role, it's the job of Congress. So, in a
sense, Marbury vs. Madison was un
constitutional.
How's that for a novel concept, eh?
Declaring court decisions rather than
laws to be unconstitutional.
Seen in this light, it makes sense
that judges would not be beholden to
the voters because they are not sup
posed to have a direct impact on the
legislative process as are the executive
and legislature. Judges are not sup
posed to make policy decisions. It's
their job to interpret the laws that fall
under their jurisdiction and to inter
pret and apply the laws to specific
cases, not to put the laws themselves
on trial.
Following the 10th Amendment ar
gument, the judiciary has been acting
in violation of the Constitution for
200 years. The only problem is, you're
never going to be able to prove it in
court. Nothing short of a constitution
al amendment would put the judici
ary back in line. And then we would
have 200 years’ worth of constitution
al law that would be practically
worthless. The cost of restoring our
judiciary to the original intent of the
framers would seem much higher
than any potential benefit.
So let the dittoheads gripe and let
the Hannitized masses rant. I'm going
to be busy looking to the future be
cause it's too late to change the past.
What we have may not be perfect and
it may not be fair, but it's as close as
we're going to get.
gabebradley@dailyemerald.com
INBOX
Support wind energy:
"Yes' on Measure 21
College campuses have long been
recognized as vehicles for social and
political change in our nation. As the
public debates global climate change,
the looming energy crisis and war in
the Middle East, scores of campuses
across the nation are taking a stand
by buying wind energy.
Wind is a rapidly improving tech
nology that can and should be part of
our national energy portfolio. It’s
clean, renewable and home grown,
but it still costs more to buy than coal,
oil or gas. However, increased de
mand for wind energy leads to more
wind farms, more investment in wind
technology and cheaper wind.
College students across the nation
are taking a stand by paying a couple
extra dollars each year for wind ener
gy. You can too. It would cost less
than one dollar per student per year
to power the EMU with 100 percent
wind energy. This week you can
show your support for wind energy at
the University by voting yes on Ballot
Measure 21.
Megan Edgar, Steve Mital and
Yoko Silk live in Eugene
OREGON DAILY EMERALD LETTERS POLICY
Letters to the editor and guest commentaries are encouraged, and should be sent to letters@dailyemerald.com or submitted at the Oregon Daily Emerald office, EMU Suite 300. Electronic
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CORRECTIONS
In “Candidates will meet with students today,” published Monday, the Emerald reported University President Dave
Frohnmayer announced Vice President for Administration Dan Williams’ resignation in a Sept. 28 letter. In fact, he an
nounced Williams’ retirement.
The article “University purchases vacant lot by bakery” contained an error in the headline. The University of Ore
gon Foundation, a separate entity from the University, purchased the lot.
The guest commentary “Stop logging McKenzie River Trail,” in Monday’s paper, misidentified the author. Yoko Silk
was the only author of the guest commentary.
The Emerald regrets the errors.
■ Editorial
Complacent
voters yield
ineffectual
government
Wednesday marks the beginning of the
ASUO primary elections, and we want to en
courage the student body to take a few minutes
to log onto DuckWeb to vote. Here are some
(just some) of the reasons why all students
should vote in the ASUO election:
Let’s start with the big stuff, such as the fact
that ASUO officials spend most of their time
spending your money. More than $10 million
each year. This stack of your cash is collected
to the tune of approximately $184 per term per
student and sent to the ASUO coffers. It comes
partially from your student fees and goes where
these elected officials say it goes.
Does it bother you that OSPIRG, one of the
largest student-funded groups on campus (with
an approved $120,074 budget for 2005-06),
could make a request to this year’s Programs Fi
nance Committee for an additional $13,000 to
fund an environmental advocate (this was de
nied) while some groups had their stipends dra
matically cut? Don’t like it? Go vote.
Earlier this year, elected and appointed stu
dent officials went on a retreat in Sunriver
where they later admitted to drinking alcohol
and smoking marijuana. We aren’t the moral
police, or the real police for that matter, but
what we found in a note they left at a guest
house, dated Oct. 10, said: “Do you pay inci
dental fees at the Univ. of Oregon? If so, your
money just paid for six people to sleep here for
two nights. We got drunk, played taboo, and
learned about the finance system, all on your
dime. We are some cocky, smooth, motherfuck
ers.” Don’t like it? Go vote.
Next year students will lose 400 seats at
home football games and 300 seats at men’s
basketball games because of changes to a con
tract that the members of the Athletic Depart
ment Finance Committee, who you elected last
year, negotiated for you. Care about getting a
ticket to the Civil War? Go vote.
Enjoying the creaky comforts of an outdated
student union building? The elected members
of the 15-person EMU Board help designate
space in the EMU for student groups, and it ad
vises the professional EMU staff on how to ren
ovate and maintain the building. The same offi
cials allocate funding for services and programs
such as the Outdoor Program and Cultural Fo
rum, and events such as the Willamette Valley
Folk Festival. Want more space in the EMU for
better events on campus? Go vote.
This year when the budget-crippled UO Li
braries could no longer support the security
needed to keep the building open 24/7 for Dead
Week, the library turned to your elected student
Senators for the necessary cash. In the face of
an impending loss of the service they debated
whether it was the University’s responsibility to
pay. Should students have to dole out money
for an academic service with funds meant to
support and, in the words of current ASUO Vice
President Mena Ravissapour, promote “the
physical and cultural development of our Uni
versity”? Go vote.
With the plethora of important issues (that
affect every student at this university) in the
hands of these candidates, each and every one
of you has no reason not to get out the vote.
EDITORIAL BOARD
Jennifer Sudick
Editor in Chief
Aille Slater
Commentary Editor
Steven R. Neuman
Managing Editor
Shadra Beesley
Copy Chief
Adrienne Nelson
Online Editor