The Constitution of the United States did not establish a government by, of, and for Judges.
It is, in fact, silent on the issue of even the Supreme Court declaring a duly passed piece of legislation “Unconstitutional.” That was a power arrogated by the Supreme Court under Maybury v Madison.
What the Constitution did establish were three co-equal branches of government (legislative, executive, and judicial) intended to counter balance each other. The legislative branch was designed to be both more responsive to the will of the public (the House of Representatives having to stand for election every two years) and sufficiently cumbersome (in combination with the executive’s power of veto) to prevent passing passions from being ensconced in law where a sufficient minority could summon enough resistance to stymie the effort.
There have been two major break downs in this design, and I’ll only speak to one of them today. That breakdown is commonly referred to as legislating from the bench.
Legislating from the bench is most commonly seen in the form of progressives trying to implement their programs via legislation and failing due to the designed cumbersome nature of the legislature and the relative ease with which a political minority can side track or defeat such a program absent overwhelming public support. When this happens, as it frequently has over the course of my lifetime, the progressives almost always take the issue to the courts.
Justice Scalia points out that this is not what our Constitution authorizes:
By Jillian Rayfield
[Quoting from California Lawyer, January 2011]
[Question:]In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don’t think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we’ve gone off in error by applying the 14th Amendment to both?
[Scalia:] Yes, yes. Sorry, to tell you that. … But, you know, if indeed the current society has come to different views, that’s fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don’t like the death penalty anymore, that’s fine. You want a right to abortion? There’s nothing in the Constitution about that. But that doesn’t mean you cannot prohibit it. Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.
“It’s not about nine superannuated judges…imposing these demands on Society.”
Yet the progressives repeatedly turn to such judges when they fail to convince their fellow citizens.