Judicial activism unconstitutional, former AG Meese says
Former Attorney General Ed Meese warned against Supreme Court judges who inject their personal bias and make laws instead of just interpreting them.
Meese spoke to a packed house at the Renaissance Hotel in Tulsa last Thursday as part of the 15th anniversary of The Oklahoma Council of Public Affairs (OCPA), a conservative think tank based in Oklahoma City.
Meese served as U.S. Attorney General during the second term of President Ronald Reagan.
“There is the conflict between constitutional fidelity and judges who substitute their own beliefs for the law,” Meese said.
In 1942, Meese said, the Supreme Court decision in Wickard vs. Filburn opened the door to massive federal control of issues that had been left to the states by the U.S. Constitution. It expanded the interstate commerce clause and allowed the federal government to control almost any activity - whether it involved more than one state or not.
“When you have judicial activism, it turns judges into impartial interpreters of the Constitution and laws as they are written and instead goal oriented partisans, who change the meaning of laws to reach a particular outcome,” Meese said.
Meese also criticized the Kelo vs. New London decision that for the first time declared it was okay for government to seize private property and give it to another individual if it deemed it was in the public interest. Previously, the government could only take property by eminent domain if it was a government-owned property. An example of the historic use of eminent domain would be for the right-of-way for a highway. Under Kelo, the government could force a landowner to sell at a controlled price for a new shopping center or restaurant or other private business.
“The courts are operating in territory they’ve never been in before,” Meese said.
Meese said the framers of the Constitution saw the government with a vertical aspect, that being the federal government’s relationship to the states, and a horizontal aspect - the separation of powers with three independent agencies Those agencies are the Executive Branch (led the president), the Legislative Branch (Congress) and the Judicial Branch (the courts).
Before the American Revolution, judges were not independent but served at the will of the king. They could be dismissed without cause or their wages could be withheld if they made decisions contrary to the wishes of the king.
George Washington, who dismissed an effort by his military to name him king, felt that judges should have independence, Meese said. That’s why federal judges are appointed for life and their wages are set.
Meese, who served as attorney general under President Ronald Reagan, said the Founding Fathers never wanted judges to be named based on whether they were liberals or conservatives but rather on a strict interpretation of the Constitution. They wanted judges who could interpret the meaning of the law, but not create new laws - a job left only to Congress.
Meese said James Madison wrote that the Founding Fathers were clear on this issue, for them the question involving judicial restraint was not and is not whether we will have liberal or conservative judges.
“The question was and is, will we have government by the people,” Meese said. “And this is why the principle of judicial restraint has had an honored place in our nation.”
“Hamilton and Thomas Jefferson, with all their differences agreed on one thing - the importance of judicial restraint,” Meese said. “All the Founding Fathers recognized that the Constitution is the supreme expression of the will of the American people. They thought that no one in office should remain above it. That freedom has survived through the ages.”
The debate between constitution fidelity and judicial restraint is not an archaic, academic exercise, Meese said.
“It has real meaning,” Meese said. “It affects every citizen. Every community. It has to do with how we go about our daily lives, even though we may not recognize it on a day-to-day basis.
“The decisions of the Supreme Court have to do with how we practice our religious liberties and how we are protected by unreasonable actions by the government itself.”
Former Oklahoma Gov. Frank Keating via a video recording introduced Meese. Keating served in the Justice Department when Meese was Attorney General.
“My association with Frank has made me feel very warm about Oklahoma,” Meese said. “Also, I am an artillery man and my son is an artillery man, between my tours of duty and his, we have made many trips to Oklahoma.”
“I have deep respect and admiration for your founder, Dr. David Brown,” Meese told the audience of 350 OCPA supporters.
Meese addressed a crowd of 350 business leaders and community activists at OCPA’s inaugural Liberty
Meese spent most of his adult life working with Reagan during both his governorship in California and his presidency. From 1981 to 1985 he held the position of counselor to the President where he functioned as Reagan’s chief policy adviser. He then served as the 75th Attorney General of the United States from 1985 to 1988 where he directed the Justice Department and led international efforts to combat terrorism, drug trafficking and organized crime.
“Ed Meese brings with him a rich collection of experience, wisdom, and an unwavering belief in the conservative ideals that have made our country great!” said OCPA president Hopper Smith.
Meese is the author or co-author of three books: Leadership, Ethics and Policing, published by Prentice Hall in 2004; co-editor of Making America Safer, published in 1997 by Heritage; and the author of With Reagan: The Inside Story, which Regnery Gateway published in June 1992.
“We need to go forward preserving liberty and protecting the Constitution that the founders gave us,” Meese said.