[JURIST] US Attorney General Alberto Gonzales [official profile] used the occasion of a Wednesday speech [transcript] to the conservative American Enterprise Institute [website] on the perils of judicial activism to suggest that judges are not the appropriate agents to rule on national security issues, and that they should otherwise exercise extreme caution when declaring executive and legislative action as unconstitutional. Gonzales said:

I do not believe the Framers ever intended for the Judicial Branch – the Supreme Court or the lower courts – to make policy. It is worth recalling Hamilton's famous words, again from Federalist 78: "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 a capacity to annoy or injure them." …

Of course, if a law or an agency action is unconstitutional, then judges, consistent with their oaths of office, should not hesitate to strike it down or prohibit it. But courts should exercise extreme caution. Members of Congress and Executive Branch officials take an oath to uphold the Constitution just as judges do. Courts that rush to invoke the Constitution to strike down the actions of the other branches sell short the wisdom and the prerogatives of the legislature, the President, and the people. …

A judge with life tenure who gives his own views on political and policy matters greater weight than the considered viewpoint of the elected representatives of the people, or who believes he alone knows what is the best policy, can make great mischief. The Framers understood this. Hamilton said, "It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature." …

Activist judges – those who on a pretense substitute their own views for the will of the legislatures – can find some rationale to support any outcome they desire. They can find in legislative history some quote to support their viewpoint. They can find a footnote in an earlier decision, and extrapolate from that a new principle despite what the language of the law itself says. But in the end, distorting history or precedent to support a pre-determined outcome weakens the Judiciary, undermines the rule of law, and harms our democracy. …

We want to determine whether he understands the inherent limits that make an unelected Judiciary inferior to Congress or the President in making policy judgments. That, for example, a judge will never be in the best position to know what is in the national security interests of our country. That a judge cannot hold hearings or conduct studies to understand all the possible implications of a policy decision.

Gonzales' Justice Department has appealed [JURIST report] an August district court decision [PDF text] declaring the NSA domestic surveillance program unconstitutional [JURIST report] on the grounds that the program violates free speech and privacy rights. In October, the US Court of Appeals for the Sixth Circuit [official website] ruled [text, PDF; JURIST report] that the program could continue to operate pending the appeal process. AP has more.