Today’s local paper had a teen written editorial (which I could not find a link to) espousing the view that activist judges are ruining the American model of government by wielding power that is not rightfully theirs. Namely, the power to make laws. The fear of so-called activist judges is certainly not new or unique to this writer. It spills into the political lime-light at every election cycle where we try to elect executives who will appoint judges likely to rule in favor of the legal interpretations we are most comfortable with.

The writer was correct that this is an abomination that was never intended by our founders. But I think he puts the blame in the wrong place. Unlike the writer, I do not believe the fault lies with the judges. I do not believe the Judiciary has any systemic desire to usurp power. Rather, this situation is thrust upon them by a Legislative branch of government which has abdicated its responsibility to make laws in the first place.

“Impossible to see, the future is” – Yoda

Master Yoda understood that it is not possible to plan in-specific for the future. Most of the laws on the books today pre-date developments that have resulted in fundamental changes in the game that couldn’t have possibly been foreseen by the laws’ writers. Writers of the second amendment clearly didn’t understand the implication of high-powered assault rifles or other weaponry which has made the neighborhood militia all but irrelevant. The Internet’s impact on privacy, wiretapping, and intellectual property laws was unplanned for. And social changes embracing diversity, equality, and minority rights have changed the legal landscape of abortion, same-sex marriage and other issues of that ilk.

Judges are repeatedly forced to try and discern meaning from antiquated laws when applied to modern situations that the laws were never intended to address. And this is the rub. The judges are the last line of defense here. If they decline to rule, the the matter is left in legal limbo, which is not really tolerable in most cases. They need to decide something. And they do. But it is my strong belief that the majority of judges would welcome clearer laws from which to rule. It would make their lives much simpler. To this end, they are filling a void, not usurping control.

And from whence comes the void? Why from the Legislature. If the country wants [insert issue here] outlawed/legalized, the simple solution is to pass a clear and unambiguous law codifying the decision. In some cases, this might involve replacing/rewriting more fundamental laws such as the constitution. But there are mechanisms for all of that. The federal legislature, in concert with at least 3/4 of the state legislatures has, in effect, unlimited power. They could completely rewrite the constitution to include the requirement that all citizens carry a red balloon and keep their cell phones on vibrate, lest they be shot on site. Neither the Executive branch or Judicial branch could do one single thing about it.

In effect, the Legislature, if it acted as one mind, would by far be the most powerful branch of government. Unlike the Judiciary and Executive branches whose checks and balances lie largely with other branches of government, the Legislative branch is almost exclusively kept in check by the improbability of its members agreeing quickly to any course of action. But in its current incarnation, the Legislature finds it impossible to agree on anything, pretty much ever.

In my opinion, the Legislative branch of government is fundamentally broken. In general, they are capable of passing laws only where there is no strong opposition or where the issue is solidly under the radar. Visual controversial issues are legislatively radioactive. No one will go near them. And so, in the absence of any other options, the duty falls to the Judiciary to make do with existing laws.

So the next time you see blame put on “activist judges”, maybe give just a little thought to the in-activist legislators that created the situation in the first place.