The Beliefs Which Allow Judicial Activism in America

Over the last several years there have been all kinds of complaints about judicial activism. This is the situation where judges have taken it upon themselves to create law from the bench, rather than doing the job that their position is designed for – which is to interpret the law.

The American system of government is designed so that there is a legislative branch, which is charged with making law, an executive branch, whose job it is to carry out the law, and a judicial branch to arbitrate disputes when people disagree as to a specific application of the law. In the case of judicial activism, the judges have stepped beyond their specific authority and taken for themselves the power to tell the legislatures what kind of law they must establish. In recent times there have been several very high profile cases where this has occurred.

Perhaps one of the most wide ranging situations was when the Supreme Court of the United States found a “right” for abortion in the United States Constitution when none is expressly given. Rather than let state legislatures decide what the law should be for themselves on this issue, which is how it should be, the Supreme Court essentially created a new law and forced the states to go along.

Another case happened when the Massachusetts Supreme Court made the same kind of decree from the bench regarding homosexual marriage. In this case, they told the state legislature that homosexual marriage was a right guaranteed by the state constitution (though it had never been seen to exist before that time) and that the legislature must specifically write it into law.

Recently, blatant judicial activism has happened again – this time in California. In 2000, the people of the state of California passed a citizen initiated proposition which enshrined traditional marriage into state law. But now, the California Supreme Court has suddenly found a “right” to homosexual marriage in the state constitution and decreed that the law which had been duly passed by the people was unconstitutional. So, with the stroke of a pen, they created new law from the bench.

As we look at these situations, we can certainly debate the proper role of the various branches of government. But in this article, we want to go a bit deeper than that to look at the role worldview plays in creating a mindset which allows judges to believe that it is okay for them to create law this way. As we explore this topic, the particular element that affects this issue relates to what the worldview asserts regarding the nature of morality. In order to have a deeper understanding of the worldview implications, we will take a brief look at how each worldview might deal with this. The following explanations are intentionally simplifications and do not try to deal with the nuances related to degrees of rightness and wrongness. Our purpose here is not to give a comprehensive explanation of nuances, but to explore the underlying principles upon which law is based.


For Animism, morality is determined by the gods who exist in the spirit world. When they are pleased, they cause good things to happen to individuals who are doing right toward them. The things which please the gods are the definition of moral rightness. As it relates to law, it is up to society to figure out the things which please the gods and enshrine those behaviors in the legal code. As a result, the law has a foundation which lies beyond the physical world, even though there is not a concrete way to get at it. Mankind figures it out as he lives life and sees how the gods react to various actions.

Far Eastern Thought

Far Eastern Thought also has a transcendent source for its moral code, though, in this case, the source is not personal – it is the impersonal life force. This does create a problem, though, since an impersonal force cannot share information of any type. In practical terms, we have is a very similar situation to what exists in Animism. Human beings are left to figure out right and wrong based on what they observe happening in the world.

Over the centuries,  religious leaders claim to have figured it out by observing what causes things to go well and what causes things to go badly for people. Based on karma, pieces of the life force move either forward or backward through successive incarnations in the attempt to achieve the ultimate goal – to escape the material world and merge with the central body of the impersonal life force.  Based on experience, religious leaders observe what causes good and bad karma. This observation has become the basis for law. Things that cause good karma are made legal while those which cause bad karma are made to be against the law.


The American legal system is based on a Theistic worldview foundation – more specifically, Christian Theism. Theism recognizes a personal transcendent God who has revealed himself, his ways and his desires to mankind. Right and wrong are understood from this revelation and these principles have become the basis for establishing the law. What God has revealed to be bad is made to be illegal and the things revealed to be good are made legal.


Since Naturalism does not acknowledge the existence of anything supernatural, there cannot be any transcendent source of morality in any respect. Morality becomes nothing more than the consensus of society or the will of the one(s) with the power to enforce their will. This is the worldview foundation which provides the justification for activist judges to assert their own will over the will of society. Granted, this is not supposed to happen based on the rule of law which is the basis for the American legal system. But if no transcendent person (God) exists who is able to tell us what is right and wrong, then there is nothing to stop powerful judges from imposing their will if they can get away with it.

What Does this Mean for Christians?

The fight in America today, as it relates to how to create and interpret the law, is primarily a struggle between a Theistic and a Naturalistic worldview approach. While there are people who hold the other two worldviews, they are not prominent enough on the American scene to make any significant ripples in the debate. Naturalism and Christian Theism, however, are in a life and death struggle to capture the heart and soul of American society.

If we are interested in keeping our societal foundation based on the rule of law, then it is critical that those who hold a Theistic belief system, particularly Christians, stand up more than ever and advocate for positions, and vote for politicians, who will take us down this road. This approach is one in which God is recognized as the supreme lawgiver and in which the laws which are established in society are derived from God’s revelation. This does not mean that we are looking to create a Theocracy. Rather, it is the recognition that the supreme authority for the country is the law, and that society is based on the rule of law no matter the prevailing social whims. Under this system, it is certainly possible to make changes in the law, but it is done by representatives who are acting based on the will of the people, rather than by a small group of judicial activists.

On the other hand, allowing for a Naturalistic approach to dealing with the law puts society in a position where there is no completely predictable means of ordering society. Laws may be passed by legislatures, but if people who do not recognize the supremacy of the law are able to climb into positions of judicial power, they are able to grant themselves the ability to say which laws are legitimate and which are not. In this case, the law becomes changeable based on the whims of the people who become judges.

In our day we are seeing the result of this Naturalistic approach as judges around the country are literally creating new law in areas such as homosexual marriage, abortion, personal property rights, religion in the public square, doctor assisted suicide, euthanasia, and much more. And all of this is based on the beliefs of individual judges rather than on the will of the people in society.

As Christians, we have a particular interest in standing up and making sure that this does not continue. God has certainly sanctioned government for the purpose of maintaining order in society. This is a very important aspect of God’s work in the world. The more chaos there is in the world the more difficult it becomes for Christians to carry out the work of the Kingdom of God.

In some societies around the world, the population doesn’t really have much say regarding how societal order is maintained. In American society, however, that is not the case. In our society, the government gets its permission to operate from the consent of the people. Since God has seen fit to place us in a society where the people are responsible for the operation of the government, it is a particular responsibility of Christians to exert influence in a way that allows for the work of God to be done. This does not mean that the government is supposed to do the work of the church. It is not. But it does mean that the government should be maintaining order in a way which makes it possible for the church to do God’s work.

As individuals, God has made us stewards (managers) over particular resources which he has entrusted into our care. In considering this topic, the most common thought is that this has to do with such things as the money, time and abilities that we have. This is certainly true, but in our situation, we are also stewards of governmental power. As Christians it is our God given responsibility to do our part to influence government the way God wants it to go.

For some, this may mean serving in political office. But for everyone it means keeping up with current events and giving voice to God’s will in society at large. We need to actively express our thoughts to our representatives and give support to those who support the rule of law. We need to oppose those who would thwart the rule of law. We must voice our opposition to legalized sin and cast our vote every chance we get. And we need to support politicians who are committed to advancing the work of God in society.

This is not to say that influencing the political arena is the most important thing we do. It is not! Sharing the Gospel of Jesus Christ is the most important thing. But when chaos rules and sin becomes legalized, the real work of God is greatly hindered and people are drawn away from him rather then toward him.

The worldview we personally hold, and the one which predominates in society will have a profound effect on every part of life. It is not something which relates simply to our religious life. Because of this, it is essential that we, as Christians, understand the worldview positions which are being expressed in modern society and stand up for the one which allows God to work more effectively among us.

© 2008 Freddy Davis