As the debt-ceiling debacle shows, Americans are genuinely frightened that our ever-expanding federal government will spend us into national collapse.  But while Americans are delivering a message of limited government to Congress and the President, proponents of small government have actually been sending a completely different message to the judiciary for decades.  That message—that any judge who strikes down a bad law is an “activist”—has been destructive to freedom and conducive to runaway growth in government.

Americans have always believed more in the power of individuals and the free market than in government power.  For example, ABC News and The Washington Times have been asking people the same question since 1984:  Do you favor smaller government and fewer services, or larger government and more services?  The results show a consistent national preference for smaller government.  In 1984, 49 percent of respondents favored smaller government while 40 percent favored larger government.  Today it is 56 percent versus 40 percent.

The American commitment to limited government is embodied in our Constitution.  The Founders were distrustful of government power and they wanted to limit government’s interference in our lives.  Largely ignored in today’s debate over limited government, however, is the role that our courts should play in keeping the government in check.

Our courts are a constitutionally co-equal branch of government.  The Founders spent considerable time debating the best way to ensure judicial independence so that the judiciary could temper overly ambitious presidents and legislatures.

A Constitution that says “no” to government requires judges who are willing to say “no” to government, too.   Yet when judges actually strike down a law as unconstitutional, they are frequently derided as “activists” by people who ordinarily think of themselves as advocates for smaller government.

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This recent decision has been in the making since 1990 when the class action Coleman v. Brown was filed in District Court that found that California “prisoners with serious mental illness do not receive minimal, adequate care.” Then in 2001 Plata v. Brown said “the State (California) conceded that deficiencies in prison medical care violated prisoners’ Eighth Amendment rights and stipulated to a remedial injunction.”

In 2005 when California did not comply with the “remedial injunction” a three-judge court was empowered “to order reductions in the prison population.” All of this is further explained in the recent ninety-one-page U. S. Supreme Court decision that can be found under “Recent Decisions” here and selecting Brown v. Plata.

Reading the text of the decision the court “concluded that it would be possible to reduce the prison population ‘in a manner that preserves public safety and the operation of the criminal justice system.’”

The decision says the state has created “a certain and unacceptable risk of continuing violations of the rights of sick and mentally ill prisoners, with the result that many more will die or needlessly suffer.” Further that, “The constitution does not permit this wrong.”

The court used a statement from the former heads of correctional systems in Washington, Maine, and Pennsylvania, to justify that California prisons are “criminogenic” and a statement from a chief probation officer who testified that “it seems like (the prisons) produce additional criminal behavior”. In that same passage California’s Little Hoover Commission stated, “California communities are burdened with absorbing 123,000 offenders returning from prison, often more dangerous than when they left.”

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