Law, morality, and judicial restraint

Contrary to what most people (including law students) think, the Supreme Court is not the branch of government entrusted with "defending" the Constitution, much less defending the Constitution against the other two branches of government (i.e., the legislative and the executive) and ensuring freedom. In fact, no provision in the Constitution even says that.

That job actually lies with all the branches of government: it is Congress' duty to make laws it knows to be Constitutional, the Executive is supposed to apply laws it knows to be constitutional and apply it in a constitutional manner. Ultimately, however, it is the people themselves, through a mature political culture, that is responsible for ensuring that the Constitution is upheld, freedom reigns, and dictatorships are prevented.

The realities of judicial power and the rule of law

As far as the Supreme Court is concerned, what the Constitution actually and simply says is that "judicial power shall be vested" in the Supreme Court and for it to decide cases, usually on appeal, "in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question" (see Article VIII).

The myth that the Supreme Court is the ultimate defender of the Constitution lies in the thinking that since the members of the Supreme Court are "not political" individuals (they are unelected, after all), they are thus free from the passions of the time or from the need to seek popularity and will always act in manner best for the country. But such argument is neither here nor there. The reason is simple: Supreme Court justices are people too.

In reality (and this in no way is intended to denigrate the members of the Supreme Court), people appointed to the SC are political and necessarily so. Otherwise they wouldn't get themselves to be appointed in the first place. Anybody who thinks that an isolated academic brilliantly doing his work in the loneliness of his study has a chance of being appointed to the SC is hopelessly naive. And the person appointed to the SC would naturally, to varying degrees, share in and have similarities to the political beliefs and persuasions of the one doing the appointing. That is just human nature.

But there are even more profound reasons to disregard the belief that the Supreme Court is the defender of the Constitution, like a parent wading in to correct the childishness of the legislative and the executive branches. Because to actually believe that the justices of the SC will not make errors is again the height of naivete. They will make mistakes even on points of law or engage in erroneous reasoning because that's what humans do. Witness the Dred Scott and Roe vs Wade cases in the US, while locally the Manila Hotel and Imelda Marcos cases come to mind.

And another thing that humans do is to have the inclination to impose one's will on others. And not even Supreme Court justices are immune from this. The danger of any individual or group succumbing to the temptation of becoming tyrannical due to a surfeit of powers is always there.

So we devised mechanisms to prevent justices of the Supreme Court from imposing their own beliefs and their own will on others, the same way we devised mechanisms to put a restraint on the Executive and Legislative branches. We call those mechanisms collectively the system of "checks and balances". We did that because of the belief that more than the intelligence, beliefs, values, morality, faith, and persuasions of the individuals that make up government, there is always the danger that these individuals will fall into error or unwittingly succumb to the temptation of being despots. And, thus, we created an objective standard or norm that is external to and independent of those individuals (including the SC justices and even us) and that is what we call the "rule of law".

The rule of law requires that judges (including Supreme Court justices) always act within the constitutionally prescribed limits of their authority. The rule of law demands that judges always remember that it is not their function to legislate for that is the job of the legislative branch (and, to a lesser, delegated, extent, the executive branch).

Rather, the true, actual duty of the judiciary is to objectively and impartially apply the law as mandated by the people through the Constitution. The judicial branch has no authority whatsoever to substitute their judgment or discretion in lieu of Congress'. To do so would be tantamount to an usurpation of authority, no matter how noble the intention. In the end, all it accomplishes is to encourage not only the tyrannical imposition of that long discredited policy of the ends justifying the means but also to give license to tyranny itself.

This is what James Madison, one of the fathers of the US Constitution (upon which our own Constitution is modeled), meant when he referred to this "policy of supplying, by opposite and rival interests, the defect of better motives" (see Federalist No. 51). This is so because if "men were angels, no government would be necessary".

Even more directly, Thomas Jefferson, another father of the US Constitution, had this to say: "to consider the judges as the ultimate arbiters of all constitutional questionsa very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.  Our judges are as honest as other men, and not more so.  They have, with others, the same passions for party, for power, and the privilege of their corps." As to whether the Constitution empowered the Supreme Court as the ultimate arbiter of constitutionality, Jefferson pointedly writes: "The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots.  It has more wisely made all the departments co-equal and co-sovereign within themselves."

The need for judicial restraint

However, all mechanisms and systems will never be perfect. And hence the reason why it is necessary that the people themselves in government respect the limits of their own power even if the wording of the laws seemingly does not provide a check on them. This combination of ambiguity in judicial rules and individual responsibility has given rise to the concepts of "judicial restraint" and "judicial activism".

Judicial activism is a type of judicial practice or thought essentially related to the "living constitution" theory, that rulings can be made by the justices based on personal or political considerations and even going beyond the specific words of the Constitution. This has been defended on the notion that the Constitution as drafted may not have anticipated certain situations contemplated in some later cases before the justices. Another defense of judicial activism is that ostensible reasons of justice call for the Supreme Court to overturn the political will of the Congress.

Admittedly, there are many people here in the Philippines, from both sides of the political fence, that actually welcome or even call for judicial activism. At first glance, it does seem a realistic, even "compassionate" way of dealing with issues. By pushing aside legal technicality restrictions and deciding in accordance with the "wisdom" of the justices does seem to make judicial activism an attractive option.

That is, until one realizes that the Dred Scott (refusing equal rights for black people), Roe vs Wade (legalizing abortion), Planned Parenthood vs Casey (overturning a law banning contraceptives to non-married couples), Perry vs Schwarzenegger (overturning California law banning gay marriage). All such cases created rights or restrictions that can be found nowhere in the US Constitution and based primarily on the justices personal ideology (like in Roe) or political consideration (like in Dred). As one legal commentator puts it, "the unchecked power to do good is unavoidably also the unchecked power to do evil."

Hence, the need for us to take a second at judicial restraint. Judicial restraint, as the name implies, encourages justices and judges to restrain the use of their judicial power by referring strictly to the expressed powers contained in the Constitution or other laws, and to refuse to strike down laws except if the same are obviously or on the face of it unconstitutional.

Judicial restraint calls on judges and justices to look closely at the law and not create rights or restrictions that are not found in the express wording of the Constitution or the law itself. It also calls for the judiciary to give high respect to stare decisis or the rule of precedence. There are many reasons for this. Prudence is one. But one prime reason is the iniquitous giving of paramount powers to unelected lawyers over and above that of the elected 250 plus members of the House of Representatives, 24 members of the Senate, and the president. Particularly when such powers are not even present in the Constitution (as discussed above).

Justice and morality

The point here is that, when very complicated issues of morality and law are now front and center in public discussions (even the issue of morality has crept into WTO disputes, see here), the temptation for judges and justices to impose their own personal beliefs and morals into legal disputes will be there and sometimes overwhelmingly so.

But members of the judiciary and Supreme Court justices above all must recognize and exercise the self-discipline, as much as they (or even the public) may believe themselves more learned, widely read, more wise than the politicians that inhabit the Congress or Malacanang, to rule only within the strict confines of the authority granted to them by the express words of the Constitution and to not substitute their discretion for the discretion granted by the people directly (through the Constitution and by exercising the right of suffrage) to the Congress or the president.

If therefore there can be found no express provision in the Constitution that is categorically conflicting with a law or measure by the Congress or the Executive, then the constitutionality of the law or measure must be upheld. If certain provisions in the Constitution are open to interpretation, then the interpretation that would result in upholding the constitutionality of the measure or law must be the one resorted to.

This is so even if Article VIII, Section 1, gives our Supreme Court the power to look into "grave abuses of discretion." For one, no constitutional expert or even members of the Constitutional Commission would argue that such provision gives the Supreme Court carte blanche to do whatever it wants. Furthermore, such provision must be read within the context of the whole Constitution (and, to a lesser degree, along with precedence and constitutional history).

To do otherwise would be to invite judicial tyranny or despotism. As we quoted above: "the unchecked power to do good is unavoidably also the unchecked power to do evil." The Supreme Court simply cannot be made as the mechanism to overturn laws or measures that although misguided or even stupid yet nevertheless are not expressly proscribed by the Constitution. There is a huge difference between knowing what is right and wrong from what is legal. And the Supreme Court justices have been constitutionally mandated to look only at what is legal. To ask them to make determinations on right and wrong is simply too much an awesome responsibility to place on 15 lawyers.

That is why St. Thomas More himself was made to say in A Man For All Seasons, "The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate," and so even the Devil should be allowed to run away free "until he broke the law!" And to ram the point home: "Yes, I'd give the devil the benefit of the law, for my own safety's sake." Unfortunately, many lawyers (and laymen) miss this point, mistaking laws that they disagree with, even if such is admittedly foolish, misguided, or unwise, to be actually illegal as well.

I am not saying that our Supreme Court is prohibited from discussing and even ruling on issues of morality. Far from it. Morality and objective moral standards definitely do have roles within our constitutional system. But if the Supreme Court is to rule on moral issues or perhaps recognize such moral standards, then such must be done only insofar as it is allowed and framed within the expressly written provisions of the Constitution.

In other words, if petitioners come to the Supreme Court hoping for a ruling touching on or arguing about moral issues then they must cite concrete (perhaps even specific) constitutional or legal grounds, not mere implications or personal reading of the Constitution, that would authorize the Supreme Court to rule on such. It would be highly unintelligent for any petitioner to the Supreme Court to expect a ruling that he or she wants simply because his/her heart is pure. If a petitioner fails or cannot pinpoint specifically what part of the Constitution that would authorize the Supreme Court to rule on moral issues or even identify the moral standard contained in our constitutional system, then the Supreme Court must dismiss the case and the blame for that exclusively falls on the petitioner for lack of familiarity with the Constitution.

Government by the people

To be rid of or correct bad (as differentiated from unconstitutional) laws, one cannot merely delegate responsibility for such to the Supreme Court. Matters of national interest and policy are too important matters to be left to their judgment. To paraphrase US Justice Antonin Scalia, a staunch Catholic and pro-lifer: why in the world would you leave it in the hands of 15 lawyers?

No. The best security against bad or misguided laws or measures is simply for the people of the Philippines to elect better people to the legislature and the presidency. If we believe that certain laws we have at present are lacking in wisdom, the remedy is not to demand the Supreme Court to violate their constitutional mandate. The remedy is for us the people to bite the bullet, endure, learn our lessons, make sure that those who made the bad laws are held accountable by voting them out of office, and mature politically.

Thomas Jefferson, writing more than 200 years ago to discourage judicial activism, said it best: "I know no safe depository of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of constitutional power."


Some recommended materials on judicial restraint are:

-The Impact of Judicial Activism on the Moral Character of Citizens (by Ilya Shapiro, Fred Smith)
- Natural Law and the Constitution Revisited (by Robert P. George)
- Judicial Restraint in the Pursuit of Justice (by Aileen Kavanagh)
- Oliver Wendell Holmes, Jr., Legal Theory, and Judicial Restraint (by Frederic R. Kellogg)
- Letter to William Charles Jarvis (Thomas Jefferson)