[Congressional Record Volume 143, Number 45 (Wednesday, April 16, 1997)]
[House]
[Pages H1587-H1588]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                      REGARDING JUDICIAL ACTIVISM

  The SPEAKER pro tempore (Mr. Rogan). Under the Speaker's announced 
policy of January 7, 1997, the

[[Page H1588]]

gentleman from Texas [Mr. DeLay] is recognized for 60 minutes as the 
designee of the majority leader.
  Mr. DeLAY. Mr. Speaker, I take this time to once again discuss an 
issue that is of great concern to the American people. That issue is 
judicial activism. And I am very pleased to join my colleagues in 
taking out this special order.
  Last week a three-judge Federal appeals court reversed a decision 
made by Judge Thelton Henderson, who barred the enforcement of the 
California civil rights initiative. In reversing that decision, the 
appellate judge wrote, ``A system which permits one judge to block with 
the stroke of his pen what 4,736,180 State residents voted to enact as 
law tests the integrity of our constitutional democracy.''
  Well, I think, Mr. Speaker, that is exactly right. Judicial activism 
threatens the checks and balances written into our Constitution.
  And, Mr. Speaker, I would like to enter into the Record an article 
that appeared in today's edition of the Hill newspaper, written by 
Thomas Jipping, the director of the Free Congress Foundation's Center 
for Law and Democracy. The article is entitled ``Impeachment Is Cure 
for Judicial Activism.'' I think it is a well-reasoned and rational 
explanation of why impeachment should be used by this Congress as a 
tool to act as a check to the imperial judiciary.

                    [From The Hill, April 16, 1997]

               Impeachment Is Cure for Judicial Activism

                         (By Thomas L. Jipping)

       America's founders knew that government power, if left 
     unchecked, will always grow and undercut liberty and self-
     government. The judiciary is today proving them correct. 
     Operating unchecked for generations, judges routinely reach 
     beyond the ``judicial power'' granted by the Constitution and 
     exercise legislative power they do not legitimately possess.
       Judicial activism exists in part because Congress refuses 
     to exercise the checks and balances the founders crafted. One 
     of these is impeachment. Rep. Tom DeLay (R-Texas) recently 
     drew howls of protest from the legal establishment and 
     political left by suggesting that Congress revive this check 
     on excessive judicial power, Rep. DeLay, however, is on solid 
     ground. His critics like activist judges because they like 
     what those judges do; they are simply not honest enough to 
     say so. But it is Rep. DeLay's view of a judiciary exercising 
     only judicial power, checked if necessary with the tools 
     provided by the Constitution, that resonates with America's 
     founders.
       Activist judges claim the power to make our laws mean 
     anything they wish. They practice Chief Justice Charles Evans 
     Hughes' maxim that the Constitution is whatever the judges 
     say it is. As President George Bush put it, they legislate 
     from the bench. Even Humpty Dumpty could define judicial 
     activism when he declared: ``When I use a word, it means what 
     I choose it to mean--neither more or less.'' If judges have 
     the power to determine the meaning of our laws, however, they 
     have the power to make our laws. That is a power legitimately 
     exercised only by the people and their elected 
     representatives.
       America's founders intended that Congress impeach activist 
     judges. In The Federalist No. 81, Alexander Hamilton argued 
     that ``the supposed danger of judiciary encroachments on the 
     legislative authority ... is in reality a phantom.'' Why? 
     Because, wrote Hamilton, ``there never can be a danger that 
     the judges, by a series of deliberate usurpations on the 
     authority of the legislature, would hazard the united 
     resentment of the body entrusted with [impeachment].''
       The Constitution allows impeachment for what it calls 
     ``high crimes and misdemeanors.'' Advocates of unlimited 
     judicial power yank this phrase from its constitutional 
     moorings and give it whatever narrow meaning is convenient 
     for their argument. American Bar Association President N. Lee 
     Cooper repeated the current myth in The Hill (March 26) by 
     arguing that judges may only be impeached for a ``criminal 
     act.''
       This bizarre theory has never been true and Mr. Cooper's 
     reliance on high school civics for this theory demonstrates 
     the dangers of both make-it-up-as-you-go judicial activism 
     and the dumbing-down of American education. Arrayed against 
     his position, however, is nothing less than 600 years of 
     English and American legal and political history.
       According to Prof. Raoul Berger, impeachment was created 
     because some actions for which public officials should be 
     removed from office are not covered by the criminal law. The 
     phrase ``high crimes and misdemeanors'' already had 400-year-
     old roots in English common law when the framers placed it in 
     the U.S. Constitution. English judges were impeached for 
     misuse of their official position or power, mal-
     adminstration, unconstitutional or extrajudicial opinions, 
     misinterpreting the law, and encroaching on the power of the 
     legislature.
       The Constitution's framers also believed that impeachable 
     offenses extended beyond indictable offenses. When they 
     settled on the phrase ``high crimes and misdemeanors,'' for 
     example, George Mason and James Madison believed it included 
     attempts to subvert the Constitution.
       All of these are features of the judicial activism that 
     today undermines liberty and self-government. Activist judges 
     do not simply make decisions someone does not like; they 
     exercise power they do not legitimately possess. If a willful 
     exercise of illegitimate power is not impeachable, nothing 
     is.
       Faced with these facts, apologists for unlimited judicial 
     power retreat to the cliche of ``judicial independence.'' 
     They never utter a word when judges illegitimately steal 
     legislative power, but suddenly discover judicial 
     independence and the separation of powers at the suggestion 
     of Congress legitimately checking judicial power. Checks and 
     balances, however, cannot work only in the direction one 
     likes.
       Judicial independence is a means to the end of a judiciary 
     exercising only the ``judicial power'' granted by the 
     Constitution and leaving the lawmaking to the legislature. 
     When judges go beyond their proper role and make up new 
     meanings for our laws, it is those judges who violate their 
     own independence and make necessary the checks and balances, 
     such as impeachment, provided by the Constitution.

  Mr. Speaker, an independent judiciary is the anchor of our democracy. 
A despotic judiciary may very well lead to the downfall of our 
democracy. I just urge my colleagues to consider all the tools within 
our constitutional authority as we, the Congress, take on a very real 
problem of judicial despotism. One of those tools is impeachment.
  Despite the barrage of criticism that myself and my colleagues have 
suffered over the last few weeks, I think impeachment is a tool that we 
should consider using.
  Mr. Speaker, I yield back the balance of my time.

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