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No excuse for judicial activism

An interesting point that made the news recently is whether members of the judiciary can resort to “judicial activism,” that is, to issue rulings effecting a judge’s policy preferences rather than decide based on what the law actually says, under the excuse that no law is applicable or the that applicable law is “vague” or “ambiguous.”

The short answer is “no.”

The reason again has to do with the separation of powers doctrine which underlies the fundamental structure of our Constitution. As has been repeatedly pointed out here (most recently in “Enough with the penumbra’s! Let the enduring Constitution prevail,” 2019), contrary to what many learn in law school, the people’s best protection against tyranny is not the Bill of Rights but rather our constitutional structure of separate and equal branches: “A bill of rights has value only if the other part of the constitution — the part that really ‘constitutes’ the organs of government — establishes a structure that is likely to preserve, against the ineradicable human lust for power, the liberties that the bill of rights expresses. If the people value those liberties, the proper constitutional structure will likely result in their preservation even in the absence of a bill of rights; and where that structure does not exist, the mere recitation of the liberties will certainly not preserve them.” (Scalia).

Judicial activism, usually under the theory of a “living constitution,” upends this crucial structure, allowing activist (and unelected) judges to impose their will beyond the Constitution and effectively establish a “judicial oligarchy.”

The “living constitution” theory thrives on the idea that the words of the fundamental law can “evolve,” it not being “static,” and is supposed to “keep up with the times.” And this had always been partnered with the idea that the venerable Supreme Court is the final defender of the Constitution.

This notion, however, popular as it may be, is utterly not grounded in any actual constitutional provision. It is, in essence, a good example of the Mandela effect, alongside the quite undemocratic idea that the Constitution (or any law for that matter) is “what the Supreme Court says it to be.”

Doubtless, jurists can wax poetic in saying the Constitution should “grow,” it being a “living organism,” and that it must be “broad” and “flexible,” a “dynamic document,” as the drafters could not possibly anticipate everything about the future. However, the inherent problem with the “living constitution” theory is that it provides cover (usually exploited by leftist progressives) to deviously circumvent the will of the People, pushing an ideological agenda through the academe and the courts what activists can’t successfully do through democratic elections.

So, certainly, the living constitution theory has its flaws. Being prone to the vagaries of changing public opinion or the evolving standards of society, it ultimately encourages social instability and allows power or mob politics to dictate what the law should be rather than the law being directed by carefully thought out reason, as well as objective standards of right and wrong.

As former US Supreme Court Chief Justice William Rehnquist puts it (in his The Notion of a Living Constitution), the nature of political value judgments in democratic societies is therefore ignored whenever the living constitution theory is used: “Beyond the Constitution and the laws in our society, there simply is no basis other than the individual conscience of the citizen that may serve as a platform for the launching of moral judgments. There is no conceivable way in which I can logically demonstrate to you that the judgments of my conscience are superior to the judgments of your conscience, and vice versa. Many of us necessarily feel strongly and deeply about our own moral judgments, but they remain only personal moral judgments until in some way given the sanction of law.”

Accordingly, then, how should a member of the judiciary approach a constitutional case, even when faced with ambiguous or vague provisions? The following, by dint of historical experience, common sense, and constitutional logic are suggested:

• Use the evident meaning of the words according to the vocabulary of the times, particularly those relevant to the drafting and ratification of the Constitution;

• Read a provision within the context of the entire Constitution;

• The meaning of the words should be used in the context of the contemporaneous social, economic, and political events;

• Only afterwards may reference may be made to the meaning the Constitutional Commission members used for such words in their submissions and pronouncements, as well as the elucidation of the meanings by debate within the Constitutional Commission;

• Commentary made after the ratification by legal experts or academics.

The foregoing list is partial and is illustrative of the fact that there are ultimately many interpretative tools, presently strengthened by technological developments, that are available to and enable a judge to decide within the ambit of the law rather than impose her or his own beliefs.


Jemy Gatdula is a Senior Fellow of the Philippine Council for Foreign Relations and a Philippine Judicial Academy law lecturer for constitutional philosophy and jurisprudence.

Twitter @jemygatdula

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