50 Pages Posted: 2 Nov 2007 Last revised: 4 Jan 2011
This article demonstrates how, by recalling that separation of power rests on down-to-earth realities of human nature, the offensiveness of judicial activism becomes clear. No longer cloaked in abstraction, such activism displays the bias, prejudice, and arrogance that the Framers sought to check. The injury is only magnified when the judicial revision is to a powerful statute like the Racketeering Influenced Corrupt Organization Act (RICO) - the litigation equivalent to a ballistic missile attack. One side of the split of authority explored here demonstrates a flagrant misreading of civil RICO statutes by certain courts who act as if they were legislators. The thesis here is that separation of powers has come to be discussed as an end itself, rather than as a means to achieve the principles the Framers valued. It is hard for judges to get too embarrassed about violating a political theory. Tell them that judicial revision of a statute is per se ambitious and arrogant conduct, and maybe they are less inclined to improvise - at least in dealing with statutes. We have forgotten that the primary basis for the "controuls" Madison and others placed in our Constitution was to limit the weaknesses of human beings as individuals and to promote the virtues of people working in a system. By renewing the focus on the principles underlying separation of powers, we will force courts to recognize that their role in our system - though important - is limited.
Keywords: Racketeer Influenced Corrupt Organization Act, RICO, Judicial Activism, Separation of Powers, Biblical Foundations of Constitution, Natural Law
JEL Classification: K10, K19, K29, K30, K39, K40, K42, K49
Suggested Citation: Suggested Citation
Madison, Benjamin V., Rico, Judicial Activism, and the Roots of Separation of Powers. Brandeis Law Journal, Vol. 43, No. 1, 2004. Available at SSRN: https://ssrn.com/abstract=1026276