In July of 1861 Richard Yates, the governor of Illinois appointed Ulysses S. Grant to serve as Colonel of the 21st Illinois Volunteer Infantry. Shortly after his appointment Grant was ordered to move his Regiment to Florida, Missouri (birthplace of Mark Twain), to engage Confederate soldiers under the command of Colonel Thomas Harris.

Now it had been many years since Grant had seen combat in the Mexican American war, and he had certainly never commanded a unit of the size he was now responsible for. The combination of these two factors left Grant in a state of some trepidation. As he put it, “While preparations for the move were going on I felt quite comfortable; but when we got on the road and found every house deserted I was anything but easy.”

Indeed, Grant would latter admit that he was so concerned about facing the enemy that it was virtually all he could do to keep moving forward, given his apprehension regarding the strength of his opponent.

In his auto-biography Grant told the rest of the story this way:

“Harris had been encamped in a creek bottom for the sake of being near water. The hills on either side of the creek extend to a considerable height, possibly more than a hundred feet. As we approached the brow of the hill from which it was expected we could see Harris’ camp, and possibly find his men ready formed to meet us, my heart kept getting higher and higher until it felt to me as though it was in my throat. I would have given anything then to have been back in Illinois, but I had not the moral courage to halt and consider what to do; I kept right on. When we reached a point from which the valley below was in full view I halted. The place where Harris had been encamped a few days before was still there and the marks of a recent encampment were plainly visible, but the troops were gone. My heart resumed its place. It occurred to me at once that Harris had been as much afraid of me as I had been of him. This was a view of the question I had never taken before; but it was one I never forgot afterwards. From that event to the close of the war, I never experienced trepidation upon confronting an enemy, though I always felt more or less anxiety. I never forgot that he had as much reason to fear my forces as I had his. The lesson was valuable.”

I think there is a lesson in General Grant’s story for all of us here today. Those of us who stand for conservative social values; who challenge the debasement of our culture; who refuse to allow the unborn the infirm and the terminally ill to go voiceless in the halls of power; and who are willing to call judicial tyranny by its name, face powerful and at time intimidating opposition.

But with General Grant we must remember that those who oppose us are not invincible. Indeed, they have as much reason to believe that we will prevail as we do to fear their apparent domination of so many societal institutions. And so with boldness I say to you this morning, “Be Not Afraid.”

I. What Judicial Activism Is

My charge here today is to speak to you about judicial activism. And to do so giving particular attention to judicial activism in Kansas.

In approaching this topic it is important to first understand what is meant by this term judicial activism. Black’s Law Dictionary defines it as, “A Judicial Philosophy which motivates judges to depart from strict adherence to judicial precedent in favor of progressive and new social policies which are not consistent with the restraint expectd of appellate judges. It is commonly marked by decisions calling for social engineering and intruding into legislative and executive matters.” Unpacking this a little bit I would contend that judicial activism occurs where a Court goes beyond its traditional role as interpreters of the Constitution and laws given to them by others, in order to assume a role as independent policy makers or independent "trustees" on behalf of society.

Judicial Activism is in summary, the process whereby Courts, already possessing judicial power, act to exercise legislative power as well.

II. What Judicial Activism Is Not.

Now a very significant majority of people that I talk to concede that Judicial Activism, as I have defined it above, is problematic. However, some would further contend that the term “judicial activism” has lost its utility through overuse by politicians out to rile up voters.

To be fair to that point I think it’s important to state clearly what Judicial Activism is not. Or at least what it is not if the term is to retain any meaning. It is not, simply any case that results in a decision people of a particular political persuasion do not like. It must be remembered that it is possible for a decision to be wrong, but still not be activist.

This is particularly true if the decision 1) was not a radical departure from current law; 2) involved interpretation of a constitutional or statutory text that clearly on its face offers a judicially manageable standard for interpretation; and 3) did not limit the ability of the state and federal legislatures to act freely within their proper spheres of authority.

Again, under such circumstances a Court may still arrive at a wrong ruling, but it would likely not be guilty of activism.

III. Why Judicial Activism Matters.

Now with this description of judicial activism in mind the question may arise, “why does any of this matter.” I hope that the remainder of my remarks will provide an answer to that question. One place to start in explaining this issue is with out founding fathers:

1) James Madison who as one of the primary authors of our Federal Constitution wrote that “No political truth is of greater intrinsic value than that… [placing the] authority of the legislative and judicial power in the same hands is the very definition of tyranny.”

2) Alexander Hamilton’s made a related point in Federalist # 78 writing:

“Whoever attentively considers the different departments of power must perceive that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in capacity to annoy or injure them. The executive not only dispenses the honors but holds the sword of the community. The Legislature not only commands the purse but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society, and can take no active resolution whatever.”

Judicial activism matters because it is nothing less than the abrogation of our system of government. It is a philosophy that replaces the rule of law with the arbitrary caprice of unaccountable judges. I trust that the danger here is readily apparent.

IV. Is the Kansas Supreme Court an Activist Court.

The next question then is whether Kansas Courts have engaged in judicial activism. Giving you my bottom line up front I would say yes.

If I had more time I would talk to you at length about 3 cases that I believe make my point.

a. Criminal Law.

In the area of criminal we could look at State v. Marsh, the December 2004 decision invalidating the Kansas death penalty statute, the exact same statute the Court had upheld in the Kleypas decision in 2001.

Suffice it to say that even Chief Justice McFarland of the Kansas Supreme Court has noted that, “There has been no change in relevant constitutional law as expressed by the United States Supreme Court. The only change has been the composition of the Kansas Supreme Court occasioned by the retirements of Justices Larson, Six, Lockett, and Abbott.” This was a decision driving not by law, but by the policy preferences of 4 new justices.

b. School Finance.

In the area of school finance we face a dire and fundamental threat to the separation of powers doctrine. I wish I had an hour to speak just on the topic of the Montoy decisions in which the Court ordered the legislature to appropriate a specific amount of money for K-12 education.

But for now suffice it to say that either both Madison and Hamilton were correct in the quotes I sited earlier, or they were both incorrect. And if they were correct then judicial edicts directing the appropriation of money can not be squared with our system of government. I have proposed an amendment to our state constitution to address this issue by clarifying the legislative prerogative over appropriations. I would ask each of you to support me in this effort.

c. Moral Values.

Now with the time that is remaining I would like to focus our attention in greater detail on a case of Judicial Activism in the area of moral standards for our state. I would like to talk to you about the case of State v. Limon.

V. State v. Limon In Focus.

In this case the Kansas Supreme Court very boldly and very explicitly declared traditional morality unconstitutional. Let me say that again so it sinks in. In the case of State v. Limon the Kansas Supreme Court very boldly and very explicitly declared traditional morality unconstitutional.

Now I want to try to answer 3 questions.

1. What Did The Court Say;

2. What Did The Court Really Mean; and

3. Is The Marriage Amendment Next.

To frame this issue I would ask you to consider two quotes given some 230 years apart:

On June 21, 1776, John Adams said "Statesmen, my dear Sir, may plan and speculate for liberty, but it is Religion and Morality alone, which can establish the Principles upon which Freedom can securely stand.”

On October 21, 2005 the Supreme Court of Kansas said, “Moral disapproval of a group cannot be a legitimate government interest.”

The chasm between these two views of the role of moral values in the public square could not be greater.

It is then the ruling of the Supreme Court of Kansas that traditional morality is irrational. Perhaps this is putting it a bit starkly, but the implications of State v. Limon deserve to be put starkly for they are as clear as they are bleak. In going our of its way to invalidate the State’s “Romeo and Juliet” law and then taking it upon itself to rewrite that provision to suit its own preferences the Court has made two things clear. First, the Court is disdainful of traditional moral norms. Second, the Court’s desire to act as a legislative body, rather than a judicial body, is not confined to the realm of school finance.

The immediate result of the Limon decision, as it pertains to Mr. Limon himself, is not the focus of my concern. In summary, Mr. Limon, as an 18 year old, had sexual contact with a 15 year old. This is a violation of Kansas law for which he was convicted and sentenced. Under the State’s “Romeo and Juliet” provision illegal sexual conduct of this type is subject to a lesser sentence if the parties involved are close in age and of the opposite sex. In Mr. Limon’s case he fit the age requirement, but his victim was male. The result was a longer sentence. People of good will can disagree on what the public policy of the State should be on this issue. (Although I would add that in Mr. Limon’s case his history of two prior convictions for similar conduct makes him a relatively unsympathetic character). The point of my comments here is to clarify the truly grievous implications of the reasoning used by the Court to arrive at its decision.

Now it is becoming commonplace for this Court to substitute its policy judgment for the policy judgment of the Legislature; thus crossing the traditional dividing line between legislative and judicial power. In short, the separation of powers crisis that came to the forefront in Montoy, is now spreading its tentacles to other areas of the law. As I have stated previously on many occasions, what is at stake in this debate is no matter of mere abstract principle; rather the very meaning of representative democracy has been placed at risk.

But, the threat of Limon relates not only to separation of powers, but to the even more basic issue of the relationship between law and moral discernment. The Adams quote from a moment ago is merely another way of saying what I think simple logic demands. That all political questions are at heart moral questions; that, to put it provocatively, not only can we legislate morality, but properly understood we legislate nothing but morality. The very act of passing laws requires moral choice, and such moral choice always has the effect of favoring some types of people and behavior over other types of people and behavior. The Kansas Supreme Court is now in the process of attempting to decouple law and morality, it is a fool’s errand.

While the good news is that the Court’s effort can not succeed; no society can, over the long term, survive such a disassociation of law from morality. The bad news of course is that we might well fend up committing a sort of cultural suicide in order to prove this point.

That having been said, taking the Court at its word when it says that, “moral disapproval of a group cannot be a legitimate government interest” would be to give them too much credit. For of course this is not what the Court really means. Rather, the Court is making a bold statement about judicial power, about its right to substitute its own moral preferences for those of the people as expressed via their elected representatives. While the Court may not see moral discernment as a proper legislative function, they certainly express no qualms about using their own powers of moral discernment to arrive at judicial rulings. Indeed in the Limon case itself the Court offers us a great deal of moral judgment on issues such as the appropriate sexual development of children, the morality of sexual relationships between children and adults, and the promotion of parental responsibility and procreation. In each of these cases the Court is perfectly willing to offer its two cents worth on the values appropriate to these areas.

In understanding the import of the Limon decision it is crucial to recognize the manner in which Court has signaled it will view the equal protection clause going forward. It will view it in a fashion dripping with its own moral preferences. Indeed, in dicta, the Court expressed its agreement with the proposition that “the promotion of majoritarian sexual morality is not even a legitimate state interest and that criminal legislation on matters such as fornication, bigamy, adultery, adult incest, bestiality, and obscenity cannot survive rational-basis review.” (A note to those who are wondering if they heard me correctly: Yes this is actually in the Kansas Supreme Court opinion).

In making this statement the Kansas Supreme Court may well be the first such court in the county to indicate agreement with Justice Scalia’s warning regarding how far reaching the Lawrence v. Texas decision on decriminalization of sodomy really was. The difference being of course that what Justice Scalia presents as an outrage the Kansas Supreme Court embraces with warm affection.

For those who worked so hard to promote the marriage amendment in Kansas this has dire implications. The reasoning that invalidated Mr. Limon’s sentence could certainly be put to work to invalidate the prohibition on same sex marriage in the Kansas Constitution. As a strong supporter of that amendment my core argument before the Kansas House was that: “once we determine that marriage can not be denied to persons as long as they claim an abiding love and commitment for one another, then we have lost the ability, in principle, to impose any limits at all on the definition of marriage. It is axiomatic that a definition so broad as to encompass everything means nothing. It is for this reason, among other, that the recognition of homosexual marriage shatters the very meaning of marriage at its most basic level.” This argument and most of the others that I heard advanced for the marriage amendment would certainly be put to test by a legal standard that defines making moral distinctions between groups of persons as an illegitimate legislative purpose. Indeed on the day this opinion came down I relieved a telephone call from a reporter asking for my reaction. I said that if I were an advocate for same sex marriage in Kansas I would be very encouraged. He told me that was interesting, because he had just gotten off the phone with an ACLU attorney and he said the same thing. I think it is fair to say that the legal challenge to the marriage amendment in Kansas is coming.

I will close by noting that what makes the Limon case so striking is the extent to which the Kansas Supreme Court went our of its way to adopt an expansive interpretation of the U.S. Supreme Court’s ruling in Lawrence v. Texas. The Kansas Court of Appeals had already upheld the statute in question using very traditional legal analysis. The factual and legal context of Limon and Lawrence were easily distinguishable. Lawrence was a due process case; Limon is an equal protection case. Lawrence involved the criminalization of specific conduct; Limon merely involved sentencing for conduct everyone apparently agrees is properly criminal. Lawrence involved conduct between two adults; Limon involved conduct between and adult and a child. The list could go on. In other words, a court taking a cautious and prudential view of the development of the law of equal protection could have and would have arrived at a different result.

But as we have been learning in recent months the Kansas Supreme Court is far from cautious when it comes to advancing its own policy objectives. And here I must agree with Justice Scalia that, "in a truly democratic society - or at least the one in America - one way or another the people will have their say on significant social policy. If judges are routinely providing the society's definitive answers to moral questions on which there is ample room for debate ... then judges will be made politically accountable." The current situation in Kansas, where justices increasingly act as policy makers, while attempting to hide behind a veneer of judicial independence in order to avoid political accountability is not sustainable.

With all of the above in mind we must do several things, first we must amend our state constitution to prohibit once and fall all any judicial encroachment into the area of appropriations and second we must act to reform to our current method of judicial selection.

In taking on these tasks let me leave you with this thought from one of my favorite authors; Russell Kirk who in the epilogue to his book “Rights and Duties – Reflections on our Conservative Constitution”, left us with this charge:

Of those Americans who dabble in politics at all, many think of such activities chiefly as a game, membership on a team, with minor prizes to be passed out after the latest victory. Yet a few men and women, like Burke, engage in politics not because they love the game, but because they know that the alternative to a politics of elevation is a politics of degradation. Let us try to be of their number.”