Conservative activists are most riled up because of a recent trend of voter initiatives being overturned by Federal judges because they violated the U.S. Constitution.  The most well known of these are California's anti-immigrant Prop 185, Colorado's anti-homosexual Amendment 2, and voter initiatives from Washington and New York outlawing physician assisted suicide.  Of the three, all have been overturned in Federal courts.  Amendment 2 has already been heard by the Supreme Court, which overturned the initiative (Romer v. Evans^*); the physician-assisted suicide cases are before the Court right now; and Prop 185 will surely find its way there. 

The reason all these initiatives (which, when passed, become law as if voted on by the legislature and signed by the governor) were overturned was because the courts determined they violated some portion of the Constitution.  Granted, there isn't anything in the Constitution that specifically addresses those issues.  But the entire challenge of law is trying to decide what all kinds of law, including the Constitution mean beyond its bear words.  Laws are written to be broad enough to allow interpretations that change over time, the Constitution even more so.  And while basic statutes are frequently revised and rewritten, tinkering with the Constitution is something we as a society don't take very lightly. 

The basic idea that courts could review laws to see if they were allowed under the Constitution springs from Marbury v. Madison, the single most important case in the history of the U.S. Supreme Court.  In Marbury, Chief Justice John Marshall outlined the concept of Federal judicial review.  He explained that the Constitution is the fundamental law of our nation, and the the powers of any other body to create law in this country come from the Constitution.  Therefore, no law of a body created by the Constitution, say Congress, could conflict with the Constitution.  Any conflict must be resolved in favor of the Constitutional principle. 

And that is where the judicial system comes in.  Impartial judges, distanced by life tenures from the constantly shifting political winds (theoretically, at least) are best able to dispassionately adjudicate those conflicts.  The courts are to resolve these disputes as matters of law, not politics or majority whim. 

Which is what pisses off these conservatives so much.  You see, these particular initiatives happen to mesh quite well with most of the conservative political ideas that are circulating right now.  Sensing an apprehensive electorate, concerned about the nation's slide into moral chaos (in the case of Amendment 2 and physician assisted suicide) or our shores being overrun by foreigners (Prop 185), conservatives see a chance to further strengthen their political power.  And in the game of politics, things like fundamental rights are often cast aside.  For an example of that, I present the case of the Communications Decency Act (CDA).  The CDA was passed by Congress and signed by the President last year as part of a huge telecommunications reform bill that was, on balance, probably a good bill.  The CDA was slipped in to try and cut down on the smut and such which permeates our fair Internet.  Problem is the language of the act was so broad and vague that everything from discussion groups for breast cancer victims to back issues of Naughty Night Nurses in Bondage.  That has been determined to be unconstitutionally broad by a lower Federal court (the Supreme Court has the case now).  Last fall I had a chance to hear Nadine Strossen speak on the CDA and the ensuing court fight.  Strossen is president of the American Civil Liberties Union (ACLU), which was the leading plaintiff in the case to void the CDA.  She said that during the negotiations of the bill that she spoke to several lawmakers who knew the CDA was unconstitutionally broad, or at least suspect, but were either afraid to vote against it, for fear of being labeled soft on porn, or knew the Court would strike it down.  Now, I don't know about you, but the idea of legislators being so cavalier about fundamental rights in the name of politics scares the hell out of me. 

And that's where the courts must step in.  To keep that small mobilized minority from trampling the rights that we as a nation have decided are so fundamental to our being.  Would the same conservatives who whine that courts overrule the will of the people say the same thing about a court overturning a Georgia initiative passed that reinstituted slavery?  Sorry to all you Georgians out there, but I needed a southern state and it was the first one that came to mind.  More interestingly would be if some ballot initiative that contained some liberal ideas was passed, maybe something establishing a socialized medical system in some state?  You can bet a month's salary that the Ralph Reeds and Pat Buchanons of the world would be on their way to court faster than a personal injury lawyer after an airline accident. 

Finally, perhaps these conservatives that are so up in arms about judicial review should heed some advise from one of their own.  Antonin Scalia is one of the most conservative people in the legal/political world today.  He is also an associate justice of the United States Supreme Court.  I do not agree with him about much (I find his theory of Constitutional interpretation to be simplistic and narrow minded, but this isn't the place for that discussion), but I agree with him on this issue.  He said recently in a speech that the recent heat politicians have brought to bear on a single judge or group of judges who, in their opinion, rendered a poor decision, is dangerous.  Judges need to be independent to render decisions based on law, especially unpopular ones that endanger fundamental rights.  Period. 

Good lord, when I agree with Scalia, we must be right! :)