In a single week, two federal judges on the U.S. District Court for the District of Utah struck down provisions of two Utah statutes as violations of the United States Constitution.
Judge Clark Waddoups invalidated the "cohabitation" provision of Utah’s anti-polygamy statute as a violation of the free exercise and due process provisions of the U.S. Constitution. Judge Robert Shelby then struck down Utah’s ban on same-sex marriage as a violation of the federal Constitution’s equal protection and due process clauses.
The latter ruling (but interestingly not the former) prompted criticism of un-elected and so-called "activist" federal judges. Some who disapprove of either decision question the unilateral authority of a single jurist to thwart the will of the people as expressed by an elected state legislature.
This view is grounded in an incomplete view of the system of government adopted by the Founding Fathers (or in the wake of these decisions, I suppose "Founding Parents") as one based entirely on majority rule. Those inclined to agree with this criticism of an independent federal judiciary should read The Federalist No. 78, written in 1788 by Alexander Hamilton in defense of the proposed federal constitution.
In explaining the rationale for federal judges to be appointed for life, Hamilton emphasized the critical role of an independent federal judiciary to take the politically unpopular action of checking unconstitutional legislative acts. One duty of those jurists, Hamilton wrote, is "to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all of the reservations of particular rights or privileges [in the Constitution] would amount to nothing."
This is the legitimate role both Judge Waddoups and Judge Shelby played in their recent decisions, whether or not one agrees with their legal reasoning.
Those who suggest that an independent judiciary should have no power to review the constitutionality of legislative acts necessarily assume that the legislatures themselves should have that exclusive authority. Hamilton anticipated that argument, but explained that placing so much authority in one branch of government would constitute an even greater threat to liberty:
"If it be said that the legislative body are themselves the constitutional judges of their own powers … this cannot be the natural presumption…. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature . . . to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts."
Not long after the people of the United States adopted the Constitution, in the landmark case of Marbury v. Madison, the U.S. Supreme Court confirmed the authority of federal courts to invalidate unconstitutional federal laws. In the wake of the Civil War, the people of the United States approved amendments that clarified the same authority as applied to state laws. The individual rights and liberties guaranteed by the Constitution would be shallow if they could be abridged by state, if not federal, legislation.
It is also inaccurate to suggest that any single federal judge has unilateral authority to overturn an act of a state legislature. Federal trial court decisions are subject to appeals as of right to a three-judge panel of the U.S. Court of Appeals, and thereafter to discretionary review by the full Court of Appeals for the relevant Circuit and discretionary review by the U.S. Supreme Court. The State of Utah is free to pursue those appeals in these cases.
I am neither supporting nor opposing either the polygamy or the gay marriage decisions. I leave that to those who have studied those areas of law in more detail. (I have personal opinions about both cases, but they are neither more nor less valid than those of any other member of our community.)
Rather, I am defending the essential role of the federal judiciary in ensuring that an elected legislative majority cannot infringe on the constitutional rights of minority groups of any kind — one of the foundational principles of American government and liberty. To those who may disagree with any particular application of those principles, I offer a final bit of Hamilton’s prescience:
"Considerate [wo]men, of every description, ought to prize whatever will tend to beget or fortify that temper in the courts: as no [wo]man can be sure that [s]he may not be tomorrow the victim of a spirit of injustice, by which he may be a gainer today."
Robert J. Adler is interim dean, James I. Farr Chair and Distinguished Professor at the University of Utah, S.J. Quinney College of Law. The views expressed herein are his own and do not reflect any official position of his employers
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