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Week of: January 28, 2001

Darwinian Roots of Judicial Activism

by F.R. Duplantier

Before we can overcome judicial activism, we have to recognize and confront the pernicious philosophy that serves to justify it.

"In George Bush v. Palm Beach County Canvasing Board, et al., the court [was] asked to decide whether the Florida Supreme Court violated the Constitution by overriding the state's election statute in order to give extra time to counties engaged in manual recounts," recalls Nancy Pearcey of the Discovery Institute. "At issue," she notes, was "Article II, Section I, of the U.S. Constitution, which says that members of the Electoral College shall be chosen by each state 'in such manner as the legislature thereof may direct.' By effectively nullifying the state election law," Pearcey points out, "the Florida judges overrode the express will of the legislature."

In a recent issue of the national conservative weekly Human Events, Pearcey examines "the powerful and longstanding trend of judicial usurpation. The idea that the role of judges is to make law has been incubating in American legal philosophy for a good two centuries," she asserts, "and rooting it out will require serious grappling with this intellectual history." Pearcey laments that the "classic concepts" of common law as being based on nature, reason, and divine law were abandoned in favor of law based on "the will of the people. Popular consent was extended from the political sphere to the legal sphere," she observes, which meant, ultimately, that "law could be shaped by the will of the judge intent of molding legal doctrine according to public policy goals."

Pearcey analyzes "the crucial role played by the Darwinian view of origins" in the development of American legal philosophy. "Darwinism is not only a biological theory," she emphasizes; "it is also the basis for a comprehensive world view -- implying a new philosophy of mind, knowledge, morality, and law." Pearcey sees a direct connection between Darwinism and the postmodern view that "the only objective and absolute truth is that there are no objective and absolute truths." She argues that a "thorough-going critique" of judicial activism "must begin with Darwinism as a scientific theory." Pearcey advocates taking "the intellectual battle into science itself. The controversy over Darwin versus design is not a peripheral issue," she insists, "but lies at the heart of the cultural crisis of our day."

Pearcey welcomes the "judicial usurpation" of the Florida Supreme Court following the presidential election as "a wake-up call to conservatives" and recommends that it be used "to mount a serious and sustained challenge to the legal pragmatism that reigns in American law schools. That legal philosophy," she laments, "has reduced law to an instrument of social policy and turned judges into legislators. At issue is the validity and viability of the rule of law itself," Pearcey warns. "For, if the courts make law, then why do we need legislative bodies? The courts would become a law unto themselves," she concludes, "which is precisely the monopoly of power that the separation of powers was designed to prevent. Restoring the separate functions of each branch of government," Pearcey counsels, "is the surest institutional protection of American liberty."


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