Those who decry judicial activism within the U.S. Supreme Court point with scorn to any decision that strays from the clear, understood meaning of the U.S. Constitution at the time of adoption of the relevant article or amendment.
Long before discussion about “emanations,” “penumbras,” and the “mystery of human life,” some of the nation’s original justices tried to sidestep the Constitution to justify their decisions.
North Carolina’s first representative to the U.S. Supreme Court — James Iredell — warned of the danger of ignoring the constitutional text. I quote from Gary L. McDowell’s essay, “The Perverse Paradox of Privacy,” which appears in “A Country I Do Not Recognize” (Hoover Press, 2005):
One of the earliest and most famous refutations of the idea that judges could recur to fundamental principles or natural law in reaching their decisions came from Justice James Iredell against Justice Samuel Chase’s claim in Calder v. Bull in 1798. “If … the legislature … shall pass a law within the general scope of their constitutional powers,” he wrote, “the court cannot pronounce it void, merely because it is, in their judgment, contrary to the principles of natural justice.” The reason was plain: “The ideas of natural justice are regulated by no fixed standard: the ablest and the purest men have differed upon the subject; and all that the court could properly say, in such an event, would be that the legislature possessed of an equal right of opinion, had passed an act which in the opinion of the judges, was inconsistent with the abstract principles of natural justice.”
