Judicial activism is the practice of using assumed judicial authority to create law apart from a constitutionally established legislative process. The roots of judicial activism are found in English Common Law. Under the Common Law system, judges had the authority to strike law down, and even create new law apart from the parliamentary process. Judicial activism, while not foreign to the 19th century, was not often exercised. It was however, recognized for what it is—authoritarian, and improper for republican governance.
Framers of America’s early state constitutions knew this to be true and never intended the Supreme Court to overturn anything except itself and lower courts. Part of this trend was altered however, when Congress acting under constitutional authority in creating District Courts, empowered the U.S. Supreme Court to review and nullify laws they deemed contrary to the Constitution. This was done with passage of the American Judicial Act of 1789. The act was very specific, it allowed the Supreme Court to strike down laws it deemed unconstitutional; but it granted no authority to create new law. That power is reserved to Congress and the President collectively.
When we say there is a “separation of powers” in government, it means that the three branches: Executive, Legislative, and Judicial, each hold authority the other branches do not. While certain branches share some responsibilities—like the executive and legislative enacting laws—many powers are unique among the three. So it was to be with legislative authority. Article I, Section I of the U.S. Constitution states,
“All legislative powers herein granted shall be vested in a Congress of the United States…”
Article VI, Paragraph 2 says:
“This Constitution, and the laws of the United States which shall be made in Pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the Judges in every state shall be bound thereby, any thing in the Constitution or laws of any state to the contrary notwithstanding.”
These two articles, coupled with the authority granted to the courts in Article III, seem to explain the judicial role quite clearly. But, as early as 1802 (under protest from Thomas Jefferson), the Supreme Court has used cases to judge law, instead of using law to judge cases.
In the constitutions of the first 13 states (save Rhode Island, which remained under its original charter until 1842) six out of twelve contained provisions specifically forbidding judicial activism. They were, Massachusetts Part I, Article 20, New Hampshire Part I, Article 29, Pennsylvania Article IX, Section 13, Delaware Article I, Section 10, Maryland’s Declaration of Rights, #7, North Carolina’s Declaration of Rights, #5 Each clause contained the same principle under varied wording. From New Hampshire’s 1792 constitution:
“The power of suspending the laws, or the execution of them, ought never to be exercised but by the legislature, or by the authority derived therefrom, to be exercised in such particular cases only as the legislature shall expressly provide for.”
Why would the contemporaries of America’s Founding Fathers provide their courts with authority to overrule elected representatives of the people? Even the six states that gave no specific clause as such outlined the authority of each government branch with specific powers. If authority to do a thing were not granted, then it was not granted. That’s what constitutions are for: they outline authority granted to select bodies, anything beyond that is considered unconstitutional.