JUDICIAL ACTIVISM PROPER IF GUARDING CONSTITUTION.

Byline: Gary M. Galles Local View

REPUBLICANS have long criticized Democrats for appointing ``activist'' judges. But now Democrats have apparently decided to inoculate themselves against that issue in November by responding in kind.

At a hearing on Texas Supreme Court judge Priscilla R. Owen's nomination to the U.S. 5th Circuit Court of Appeals, the Senate Judiciary Committee chairwoman, Diane Feinstein, D-Calif., tried to impose that same scarlet letter A on President George W. Bush's nominee, despite Judge Owen's strong denial.

While this makes it apparent that charges and counter-charges about judicial activism will loom large in the upcoming election, whether courts are to be active is not, in fact, the central judicial issue.

Federalist 78, by Alexander Hamilton, the founder most identified with active, powerful government, makes that clear.

Parts of Federalist 78 seem to condemn any judicial activism:

``The judiciary ... can take no active resolution whatever. It may truly be said to have neither force nor will, but merely judgment.

``It can be of no weight to say that the courts ... may substitute their own pleasure to the constitutional intentions of the legislature. ... The judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution because the least in a capacity to annoy or injure them.''

These passages, however, do not imply inactive courts. Although judges are not to act based on their own preferences, they are actively to strike down what is inconsistent with the Constitution.

While courts are not to invalidate laws consistent with the Constitution, not everything legislatures enact is constitutional. And the judiciary remains the least dangerous branch only when it refrains from actively creating deviations from the Constitution.

Federalist 78, in fact, describes courts that must be active, although only in a very limited form, by saying that ``the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments.''

``The complete independence of the courts of justice is peculiarly essential in a limited Constitution ... which contains certain specified exceptions to the legislative authority. ... Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.''

Further, ``the courts were designed to be an intermediate body between the people and the legislature in order ... to keep the latter within the limits assigned to their authority.''

And ``where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former.

``No legislative act, therefore, contrary to the Constitution can be valid. To deny this would be to affirm ... that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.''

And ``whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former ... to guard the Constitution and the rights of individuals.''

These statements make clear that courts are not to substitute their desires for constitutional laws, but that they must vigilantly maintain constitutional rights against executive or legislative branch overreaching of their enumerated powers.

Federalist 78 states that, ``though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the executive. ... Liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments.''

These statements make clear that a judiciary appropriately constrained by the Constitution is not a threat to citizens' rights, but one that actively deviates from its constitutional authority by exercising legislative or executive powers would be the most dangerous branch.

Federalist 78 makes it unambiguous that any discussion of judicial appointments that implies that there is either no active role for the courts or that there is an unconstrained role for judicial activism does not accord with the constitutional intent of our founders.

Hamilton's words bring us back to the courts' proper role: active guardian of the Constitutional rights of citizens and the constitutional limitations on federal power, not active subverters of those limits or passive accomplices to the subversions of the other branches of government.

Adherence to this role should be the litmus test for judicial appointments.