Legislation Does not Trump the Constitution.

One idea many are picking up by from the debate on the role of the courts is the courts have little business striking down legislation. This is being driven by the right-wing narrative that the left is trying to enact their agenda by doing a legislative end-run via the courts. That is if the left can not get a legislature to repeal a law they dislike, they find a judge to declare it unconstitutional. If the left can not get a law passed they desire, they find a judge to declare the law of their desire a constitutional imperative.

That is reprehensible but the antidote is not to declare the will of the legislature paramount. The laws the legislature passes must fall within the boundaries laid down by the Constitution.

Over at the Jawa Report I have gotten into a little comment section discussion on this topic. A particular poster declares right wing judges/courts have struck down more legislation than others. Of course the immediate reaction is to recoil but when you think about it, it makes sense right wing judges would probably strike down more laws than leftists especially in the current political environment.

For example there was a law on the federal books that prohibited drugs and guns within a given distance from schools note:

In United States v. Lopez, the Supreme Court declared the Gun-Free School Zones Act of 1990 (GFSZA) an unconstitutional exercise of Congress's Commerce Clause power. The repudiated statute made it a federal offense "'for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone.'"

The Court offered several reasons why the ban on possession of firearms in school zones was unconstitutional. First, the Court noted that possession of firearms is not an activity traditionally associated with the federal power over interstate commerce. Regardless of this [*pg 638] fundamental problem, the statute could not be upheld because there was no rational basis for concluding that possession of firearms in a school zone affected interstate commerce and there was no "jurisdictional element" to ensure that in each case the possession affected interstate commerce. Ultimately, the statute was unconstitutional because it was not an exercise of any of the three broad categories of Congress's Commerce Clause power: (1) power over the use of the channels of interstate commerce; (2) power over the instrumentalities of interstate commerce, or things in interstate commerce; and (3) power over activities substantially affecting interstate commerce. [ed. footnote references removed]

Source: Duke Law School SETH J. SAFRA - THE AMENDED GUN-FREE SCHOOL ZONES ACT: DOUBT AS TO ITS CONSTITUTIONALITY REMAINS

Essentially the Federal government is prohibited from regulating affairs that stay in a state and do not affect other states. The Constitution allows the federal government to regulate business and trade that crosses state lines, this is the commerce clause. The Federal Government tried to claim their ability to pass a law such as the one struck down above arises from the commerce clause. This is quite obviously absurd and the court recognized this.

This is not an example of judicial activism. Now, if the court asked itself what result would we like to see and said "We'ld like to see this law upheld" and then came up with reasoning tailored to get the result it wanted despite the clear wording in the constitution then that would be judicial activism.

That is, Congress is all to happy (Republican or Democrat) to try to get power it does not rightly have! When that happens the Courts must step in. This is why our nation needs not activist judges left or right.