Alexander Hamilton, James Madison and John Jay wrote a set of 85 essays known as the Federalist Papers between October 1787 and August 1788. Their purpose? To explain and advocate for the ratification of the newly-proposed U.S. Constitution, drafted during the summer of 1787 at the Philadelphia Constitutional Convention. Several of those essays dealt with Article III of the Constitution concerning the powers and duties of the federal judiciary. In Federalist #78, authored by Hamilton, we gain a clear understanding of the Founding Fathers' view on the limits on judicial power:
…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. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments. [Emphasis added.]
We have a government made up of three distinct branches: the legislative, the executive and the judicial. This "separation of powers" was created not for each branch to battle the others, but rather to provide "checks and balances" against any possible excesses by one of them. The three branches were meant to complement each other by operating within their own sphere of authority, and were never to exercise powers and prerogatives granted to the other branches.
During the past 60 years, many federal judges (followed closely by their state counterparts) have gradually strayed from the constitutional role of interpreting the law – providing "judgment," to use Hamilton's word – to actively legislating from the bench, especially in controversial areas of social policy. In other words, activist judges at the federal and state level have abandoned the Founders' understanding of the constitutionally limited judicial function and have usurped the legislative function (without admitting it, of course) in order to impose a radically liberal vision for America. That vision includes such things as creating previously unknown constitutional "rights" to abortion and same-sex marriage, for example.
Since federal judges are appointed for life, their lack of accountability to the democratic will of the people makes such judicial activism especially dangerous. Hamilton argued in Federalist #78 that the Constitution's "good behavior" qualification on judges' lifetime appointments would suffice to keep them in line, but in practice it has not been used to rein in activist judges. It is ironic that the Founders proposed lifetime appointments for federal judges because they most feared overreaching by the legislative branch, while considering the judiciary the "least dangerous" branch.
Judges who legislate from the bench, however, never admit that their actions violate the judicial function. In order to justify their judicial activism, judges (and the constitutional law professors responsible for training them) have employed the "living Constitution" model of constitutional interpretation. This model argues that our Constitution needs to be interpreted in light of evolving values and societal developments.
They argue that the Founders would never have desired or created a rigid, inflexible document wedded to a late-eighteenth century understanding of its provisions and the societal norms undergirding them. However, that argument ignores both the general purpose of the Constitution as a foundational governing document as well as the vehicle for change contained in the document. Justice Scalia is fond of saying that the Constitution is not a living, breathing organism, but rather a legal document that says some things and doesn't say other things.
The answer to the question of adaptability of our Constitution is found in the amendment process, an intentionally difficult procedure that requires wide public support and approval for such a change. That built-in difficulty is meant to keep the Constitution's foundational principles from being changed at the whim of a minority, yet responsive to the will of the majority.
For judges to effectively bypass that procedure by creating new constitutional "rights" out of whole cloth is at once unconstitutional and anti-democratic. A "living Constitution" philosophy is nothing less than an excuse for activist judges to impose their personal preferences upon an unwilling citizenry in the name of "evolving standards," which they alone are entitled to discern.
In recent years, activist courts have increasingly appealed to laws, documents and court decisions from foreign countries in order to justify judicial results not supportable under our own Constitution and laws. For example, in 2003, the Supreme Court ruled in Lawrence v. Texas that sodomy was a constitutional right, citing the European Convention on Human Rights and recommendations from a "committee advising the British Parliament" as legal justification for an "emerging awareness" concerning sexual issues.
That same year, the Massachusetts Supreme Judicial Court looked not only to Lawrence, but also to the Canadian courts for support for its ultimate exercise of judicial overreaching in declaring that the Massachusetts Constitution required the state to license same-sex marriages.
As liberal judges continue look to their counterparts in Europe and elsewhere for help in changing America's social landscape, our nation's deeply held beliefs and constitutional freedoms get erased by judicial fiat.