The dominant view today among legal scholars, law professors, practicing lawyers, and judges in this country is that the Constitution is a "living, breathing" document, and that judges on the highest federal benches are charged with "reinterpreting" its text so that it will better conform to "the evolving standards of decency that mark the progress of a maturing society" such as ours.
That perspective is, in my opinion, completely asinine.
The fact is that if you believe in that sort of Constitution then you believe in no Constitution at all, because when any legal document's text can be redefined by judges anytime they feel like doing so, the ideas expressed therein cease to have any relevance. Supreme Court justices, as well as other federal jurists, who fail to be primarily concerned with what the drafters of our Constitution originally intended, must logically be more concerned with their own opinions of how the Constitution SHOULD have been written, and if that is the case, they have no business being judges. Simply put, if your agenda is to make changes to our Constitution, then present your amendment proposals to the American people like our founding fathers intended, and stop trying to circumvent the process by legislating from the bench!
Arguing in favor of judicial activism on any high court is no different that asserting that a district court judge who presides over a landlord-tenant dispute has the right to simply disregard the original rental agreement and write a new one on the spot, the terms of which each party involved must then be legally bound to until another judge decides to change it again.
Tell me, how would you like it if a some lawyer in a black robe determined, based upon his own ideological worldview, that you as a tenant should have your rent increased by $500 each month, even though your lease specifies a set amount with no provision for any such increase? Would you just nod your head and say, "that's the way things go, because, after all, my rental agreement is a living, breathing document, and the judge certainly knows more about what's best for me than I do"... or is it more likely that you would turn to the judge and ask "who are YOU to change the terms of MY rental agreement?"
Activism on any court is not only dangerous due to the fact that activists aren't concerned with the intended meaning of legal texts, it is fascistic because those who practice it from the bench feel they have a right to redefine any of the principles upon which our laws are based whenever they happen to oppose them on ideological grounds. For instance, the Constitutional right of all Americans to exercise the religion of their choice, as expressed in the First Amendment, is rooted in the principle that lawmakers have no moral authority to dictate to anyone what they should or shouldn't believe with respect to the nature of God, or the manner in which they may worship. While that amendment specifically relates that "Congress shall make no law respecting an ESTABLISHMENT of religion," it in no way restricts the federal (or any state) government from displaying religious words and symbols on public buildings, monuments, currency, etc., because such acts are not coercive in nature.
CLEARLY the principle that has only recently been declared by atheists to be foundational to the First Amendment, which is that the government has no right to acknowledge the existence of God or the importance of religious beliefs in the development of our laws and culture, was completely alien to the people who crafted the Bill of Rights, as even the most cursory examination of America's historical documents and public structures will confirm. Yet in spite of the overwhelming evidence to the contrary, judges across the land continue to insist that the atheist view is correct, because they do not feel obligated to consider the original intent of the founding fathers.
This sort of willful disregard for the truth is not only shameful, but in my opinion, criminal when engaged in by a judge, no matter what the subject, or on which side of the political aisle he stands. In the mind of an activist, though, it's the end results that matter, not the means to those ends, and if bending the rules gets you were you need to go, so be it.
If you've been paying attention to them over the past few decades, you will have noticed that the reasons activist judges cite to justify their improper behavior usually include words to the effect that attitudes have changed in our country since the Constitution was written, and therefor that document must change with the times. But what they don't tell you is that it's OUR right as the citizenry of this country, and our right ALONE, to change it. The Constitution is not a set of loose guidelines, it is a contract between the federal government and every American citizen, and unless WE THE PEOPLE determine that it should be amended, its terms, like the terms of your lease, are designed to be strictly adhered to.
Moreover, there are any number of laws that we are free to create, amend, or repeal that regard topics not addressed in our Constitution. Among them are a host of morally based issues like abortion. When judges proclaim that it is unConstitutional for us to outlaw abortion based upon their opinion that a woman has an absolute right to privacy, one needs to ask oneself how they came to that conclusion, since no such right exists in the Constitution. Whether or not you personally agree with the argument that we SHOULD have an absolute right to privacy is irrelevant, because these activist judges aren't asking your opinion, they are forcing theirs upon you!
But, you say, as long as they are giving me more rights than I had before, I'm not going to complain. All the better for me and everyone else, right? WRONG! You see, the very fact that you are allowing judges to give you new rights opens the door for them to take other rights away from you in the future, because those judges are no longer bound by any standard for making their decisions.
Originalist judges have a very simple and logical criteria for coming to the conclusions they do regarding any case before them. That criteria is one in which the questions are asked "what did the people who wrote this law intend to convey, and how should I go about determining the correct answer?"
Activists will argue that they should not be constrained by that particular criteria, yet they offer no other one in its place. Feel free to tell me what the standard is by which an activist judge reaches his decisions. You can't, because there isn't one, and once a strict judicial standard has been removed from the equation, all you are left with is judicial tyranny.
I'm sure you'll let me know if you think I'm wrong, but I believe that people in one particularly troubled area of the world have a name for judges who arrive at their decisions in much the same way Justices Ruth Bader Ginsburg and Stephen Breyer do... they're called mullahs, and their idea of justice often involves beheading people who question their "supreme" wisdom.
By Edward L. Daley
Founder of the Conservative Convention 2007 Project