Legislating from the Bench

The argument I hear over and over again when it comes to civil rights related court decisions that conservatives disagree with is as follows:

"Activist Judges are legislating from the bench! They are going against the will of the majority and using their power to create laws based on their beliefs. Judges should be interpreting the law... not making it."

If you have been guilty of such an argument... let me ask you this: Do you know of a certain political philosophy that the U.S. has adopted known as "systems of checks and balances"?
If not, let me explain-- this system says that if congress passes a law that is unconstitutional then it is up to the judicial system to overturn that law.

This power has been used many times in the past-- and many laws have been overturned by our courts... Do you hate the "activist judges" that made these decisions?

Brown v. Board of Education ended the "separate but equal" justification for segregation.
Gideon v. Wainwright gave people the right to a defense attorney if they can't afford one.
Korematsu v. United States deemed the Japanese war camps unconstitutional.
Loving v. Virginia overturned a law that made interracial marriages illegal.
The following are court decisions that overturned laws that infringed on our first amendment right to free speech: Texas v. Johnson, Gitlow v. NY, Schecter Poultry Corp. v. US, US v. Butler, Yates v. US, Tinker v. Des Moines, Island Trees School District v. Pico, NY Times v. Sullivan

It can be easily argued that "activist judging" is what we owe most of the progress of our country's civil rights to. Had we not had these decisions, America would be a much less free country than it is today. The reason we need these "activist judges" is because congress is made up of a bunch of meatheads that want to pass laws to criminalize sexy dancing, marijuana flavored lollipops and butt-sex... somebody in this country has to interpret the constitution and our congressmen/women are not the people to do it. The members of congress tend to just ignore the constitution when they put forth legislation... to see evidence of this just make a quick read through the Patriot Act.

Perhaps you think that issues like abortion, gay marriage, flag burning, and the 10 commandments should be decided by popular vote... I mean we are a democracy aren't we? Shouldn't the laws reflect what the majority wants? ........ do you honestly think that we can rely on common citizens to cast intelligent and well informed votes? The majority of people in the US can't even spell constitution let alone interpret it.

The reason we shouldn't allow civil rights decisions to be made by popular vote is because citizens just tend to vote against things they don't like... with no regard for constitutionality. For a historical example: if the south had voted on whether to keep slavery over 100 years ago, they probably would have voted to keep it... or if the south had been allowed to vote on whether to keep a ban on interracial marriages, they probably would have. Plain and simple... we can't rely on the majority to make responsible decisions, especially for the minority... just look at the 11 states that voted to ban gay marriage (which I've given a constitutional argument on earlier in my web log).

"Activist Judge" is just a ridiculous name given to a judge that makes a decision that you don't agree with. The funny thing is that those who throw around the phrase "activist judge" are most often the biggest hypocrites... Sean Hannity loves labeling judges that he disagrees with as "activist judges"; however, during the Terry Schaivo case he was outraged that the judges in the Florida courts wouldn't go against what the law states and give custody of Terry over to her parents. Hypocrisy? Yes.

The fact of the matter is that we need judges to make sure that laws are constitutional-- if they don't, nobody will... and if nobody does... no more sexy high school cheerleader dances.