The View From 1776

Is Judicial Activism OK?

Edward A. Kole presents an interesting argument in support of judicial activism as a long-range defense of the Constitution.

He argues that the underpinning of all our laws is the common law, and that judges’ job is to make the common law conform to changes in social, economic, and technological conditions. 

So long as judicial activism is limited to judicial interpretation of age-old traditions of common law, it is held more or less in check.  Our 20th and 21st century problem, however, has been judicial activism as a tool for discovering hitherto unprecedented Constitutional “rights,” such as abortion and same-sex marriage, particularly when those “rights” are strongly opposed by the majority of citizens.

Mr. Kole is certainly correct in categorizing common law as judge-made law that has evolved continuously since the 12th century.  Cases tried under common law sometimes involve unusual conditions not addressed in earlier cases.  Judges both select the prior law cases and principles they believe to be applicable, and then apply their reasoning to the new case in ways that may alter the meaning of the older common law principle for future litigants.

The 20th century doctrine of legal realism espoused by Supreme Court Justice Oliver Wendell Holmes, Jr., went much further.  Justice Holmes flatly denied that there are any higher principles of morality or law that guide judicial decisions.  The law, he wrote, is nothing more than whatever a judge says it is.

Therein lies the inherent danger in judge-made law.


By Edward A. Kole

On Sunday, August 20, 2006, in “Setting the Record Straight, Part 3” Mr. Brewton wrote: ?“It’s a pity that the Bill of Rights didn?t incorporate language found in many of the contemporary state constitutions.”

Mr. Brewton continued with, “Many of the state constitutions, between the time of the Articles of Confederation and our 1787 Constitution, contained clauses similar to Delaware’s, granting freedom of worship ...unless under colour of religion, any man disturb the peace, the happiness, or safety of society. ?Were such language in the First Amendment, vast numbers of vexatious problems could have been avoided. . . . “?


I wholly agree with Mr. Brewton. ?However, it is also my opinion that the Founders crafted a permanent remedy for all inequities and criminal acts simply by framing a Common Law Constitution. ?Unfortunately, recent generations have lost their Common Law connections, for in that ignorance they no longer appreciated the Founder’s vision for a Common Law Constitution. ?By sanctioning the Common Law as the Law of the Land they elevated the Judiciary to the level of the Legislature and the Executive. ??For those who believe we did not lose our connection to the Common Law, then why does blood boil when we perceive Judges as legislators? ?Does not “Common Law” translate as “Judge-made Law?” ?

Before discussing “Common Law” and “Judge-made Law” let us see how the Common Laws of 1776 answers to Mr. Brewton’s concerns. ?What follows are just a few of many Common Law Rules that answer to his concerns. ?

Blackstone’s Commentaries on the Laws of England Book the Fourth - Chapter the Eleventh: Of Offenses Against the Public Peace

9. ?THE offence of riding or going armed, with dangerous or unusual weapons, is a crime against the public peace, by terrifying the good people of the land; and is particularly prohibited by the statute of Northampton, upon pain of forfeiture of the arms, and imprisonment during the king’s pleasure: in like manner as, by the laws of Solon, every Athenian was finable who walked about the city in armour. ?

10. ?SPREADING false news, to make discord between the king and nobility, or concerning any great man of the realm, is punifhed by common law with fine and imprisonment; which is confirmed by statutes. ??

11. ?FALSE and pretended prophecies, with intent to disturb the peace, are equally unlawful, and more penal; as they raise enthusiastic jealousies in the people, and terrify them with imaginary fears. ?They are therefore punished by our law, upon the same principle that spreading of public news of any kind, without communicating it first to the magistrate, was prohibited by the antient Gauls. ?Such false and pretended prophecies were punished capitally by statute which was repealed in the reign of queen Mary. ?And now by the statute the penalty for the first offence is a fine of 100 /., and one year’s imprisonment; for the second, forfeiture of all goods and chattels, and imprisonment during life. ?

12. ?BESIDES actual breaches of the peace, any thing that tends to provoke or excite others to break it, is an offence of the same denomination. ?Therefore challenges to fight, either by word or letter, or to be the bearer of such challenge, are punishable by fine and imprisonment, according to the circumstances of the offence. . ?If this challenge arises on account of any money won at gaming, or if any assault or affray happen upon such account, the offender, by statute shall forfeit all his goods to the crown, and suffer two years imprisonment. ?


Our Common Law Federal Constitution is Judge-made, and People-approved.

From a time out of mind to date, it has been the custom of English and Colonial American jurisprudence, that the Common Law, Statutes and Constitutions are to be honored. ?As such, we agree that the Common Law will override Custom Law, that Statutes override the Common Law, and Constitutions will override Statutes. ?Still, however uncomplicated these rules, to leave so profound a notion without further explanation diminishes the enormity of the Framer’s revolutionary vision and accomplishments. ?In a world of varying degrees of privilege and class, and where might makes right, the Colonial Americans abandoned these ageless convictions and joined themselves to a Common Law Constitution. ?Instead of creating a nation committed to class and privilege, they created a nation of political equals, ?committed to the notion that no man is above the law. ?The American Common Law Constitution forever quashed the idea that certain people inherit the right to rule, or are superior to others because they claim some unique divine knowledge. ?Instead of creating a Theocratic Monarchy, the American?s chose a Constitution that raises the rule of the Common Law as the highest authority. ?

Common Law is NEVER created as Legislatures create Statutes. ?Common Laws are “discovered,” but only after proving its “perfection” after generations of unchanging, continuing and uninterrupted use. ?Should any Law or Court Opinion be found with a fault, the People and their Judges discarded it, or invested it with new found knowledge. ?The age of the Common Law is not its weakness. On the contrary, its antiquity is PRECISELY the REASON for the American?s trust, esteem and affection. ?Another fundamental difference between Common Law and Statute Law is the Common Law’s dependence on reason, its universal application in all circumstances, and the People’s good common sense. ?On the other hand Statute Law is arbitrary law and continues only for the coercive power of the State. ?

Unlike Statute Law, Common Law is not born in the fleeting passions of mere generations. ?We discover Common Law after Courts learn of their injustices, or we have made a new technology, or when we discover, rediscover or uncover the true character of our human nature. ?For instance, the right of self defence does not change according to the technology or for political transitions. ?Whether we use the “Right” to defend ourselves with a stone, club, arrow, or bullet . . . a shield or a bulletproof vest, the Right of Self Defence does not change. Whether we are scratching the surface of a clay tablet, writing with ink filled goose quills, or typing on a computer keyboard, the need to express ones self does not change, for the Common Law stipulates and protects our unalienable RIGHTS to speak, assemble and publish. ?These freedoms are inseparable parts of our physical being and do not exist as permissions by advocates of some political or religious dogma or lunacy. ?

England’s abuses to Colonial Englishmen and the Common Law make up most of the Declaration of Independence. ?Correcting those grievances became the mission and blueprint for the U.S. Constitution and the first thirteen State Constitutions. ?Forever to remedy the Declaration’s grievances, the Framers chose the English Common Law as the standard by which the Judges interpret Constitutions, Statutes, Proclamations, Executive Orders and Judicial opinions. ?To this end the Founders wrote the following into the Constitution ?. . . ??

Article III. Section II: ?The Judicial Power shall extend to all Cases in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of Admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States, between a State and Citizens of another State, between Citizens of different States, between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizen thereof, and foreign States, Citizens or Subjects. ?

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the Supreme Court shall have original Jurisdiction. In all other Cases before mentioned, the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such exceptions, and under such regulations as the Congress shall make. ?

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the trial shall be at such Place or Places as the Congress may by Law have directed. ?

ARTICLE THE SEVENTH: ?In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact, tried by a jury, shall be otherwise re-examined in any court of the United States, than according to the rules of the common law. ?


To protect the Common Law and the People the Founders made sweeping changes in the Law’s pecking order ??Then as NOW, Common Law overrides Custom Law. ?Statutes override the Common Law, and Constitutions override Statutes. ?

However, with Common Law Constitutions, it is the Constitution’s Common Laws that is the Supreme Law of the Land. ?NOW those Common Laws override Statute Law. ?

But just what has the Common Law provided, and where in the Constitution is it?

The most obvious Common Laws are in the Bill of Rights. ?Just to name a few we have Trial by Jury, Indictment by Grand Jury, Writ of Habeas Corpus, rejection Bills of Attainder, or Ex Post Facto Laws, or Law impairing the Obligation of Contracts, the separations of power, that no man will be a judge in his own cause, the Corruptions of Blood, Equality under the Law, one man one vote, the Rule of Law and a host of definitions and penalties for all manners of Crime. This short list only begins to enumerate the Common Laws that forms the Constitution and the principles of self governance. ?

Because the most Colonial Americans were Englishmen who believed and trusted in the Common Law, then it is to the Common Law and Colonials’ First State Constitutions that we must go to discover the measure of their trust and what they intended for the themselves and their posterity. ?Only then can we learn why they (and we should) reexamine, redefine to reinvigorate our Common Law heritage. ?


As proof of the Framers Common Law intent, I offer some selected texts from “The True Intent of the First American Constitutions of 1776-1791”


Account of the Constitution of the State of Connecticut.
“The superior and county courts try matters of fact by a jury, according to the course of the Common Law. . . .”


The Constitution of the State of Delaware.
“25. The Common Law of England, as well as so much of the statute law as have been heretofore adopted in practice in this state, shall remain in force, unless they shall be altered by a future law of the legislature; such parts only excepted as are repugnant to the rights and privileges contained in this constitution and declaration of rights, &c. agreed to by this convention.”


The Declaration of Rights of the State of Maryland.
“3. That the inhabitants of Maryland are entitled to the Common Law of England, and the trial by jury, according to the course of that law, and to the benefit of such of the English statutes, as existed at the time of their first emigration… ’


Constitution of the State of New-Jersey.
“22. That the Common Law of England, as well as so much of the statute law as have been heretofore practiced in this colony, shall still remain in force, until they shall be altered by a future law of the legislature; such parts only excepted as are repugnant to the rights and privileges contained in this charter; and that the inestimable right of trial by jury shall remain confirmed, as a part of the law of this colony, without repeal for ever.”


The Constitution of the State of New-York.
“35. And this convention doth further, in the name and by the authority of the good people of this state, ordain, determine, and declare, that such parts of the Common Law of England, and of the statute law of England and Great-Britain, and of the acts of the legislature of the colony of New-York,. ” ?


Judicial Activism, a.k.a. Judge-made Law or Legislation from the Bench, attempts to describe Judges whose opinions we perceive as unconstitutional intrusions into constitutional places they should not enter. ?In the main, these catchy politicized phrases are used to criminalize Judges who for their differences of opinion, we accuse of usurping powers constitutionally entrusted to other branches or departments of government. ?Without frustration or rancor, it is also fair to say that we in recent generations often perceive Judge-made law as illegal, stupid or despotic. ??Nonetheless, whatever a Judge’s politics or opinion, in the passage of time and the ever changing political landscape, different Judges in different generations will produce other opinions that will rewrite offensive interpretations into just Common Laws. ?Today “Judge-made laws” compel the People to debate unresolved issues such as abortion and the alleged right to privacy, stem cell research and murder, suicide and the alleged right to die, same sex marriage, eminent domain, selective discrimination or put another way, affirmative action, the profiling of terrorists and undocumented aliens’, terrorism and religious intolerance, assimilation and balkanization. ?These are some issues in which our Judges, and the People, are concurrently seeking a Common Law solution. ?

Given our Common Law Constitutions, I fully expect our esteemed activist Judges, and an activist citizenry, will resolve their differences, for only they are charged to discover the Common Laws that remedy every unresolved case and issue. ?

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