The last couple of months have seen some interesting judicial decisions, which should be troubling for those who believe that judges should follow the Constitution and precendents as opposed to passing laws from the bench.
First, the California Supreme Court managed to find a right to same-sex mariage in the California Constitution; something that nobody suspected existed for the prior 150 years.
Then, the U.S. Supreme Court effectively admitted that it was amending the Constitution unilaterally by granting constitutional rights to non-citizen detainees.
Finally, the Supreme Court usurped a state's authority to decide what constitutes a capital crime within its borders by striking down a Louisiana law that made child-rape a death penalty offence.
These decisions, and others like them, call into question the role of the judiciary in our government. Specifically, has the judiciary become too powerful, and are we still the democratic republic that the Founders intended us to be?
At the founding of the Republic, the judiciary was set up to be insulated as much as possible from public pressure in order to protect its independence. In Federalist Paper #78, Hamilton argued that the liberty of the people could never be endangered by the judiciary because it did not have the power of the 'sword' (President) or the 'purse' (Congress).
Hamilton was responding to critics who argued that a completely independent judiciary would pose a danger to liberty and the Constitution. Although a strong and independent judiciary is an important pillar on which the Republic rests, the last 50 years have shown that Hamilton may have erred in discounting its dangers. Although there is nothing inherently wrong with allowing the courts the last word, the Left in this country has used the court system to grant "interpretations" more suitable to advancing its agenda.
The acquiescence of the other two branches of the federal government (as well as their counterparts in state government) to judicial power grabs has been that judicial rulings and the rule of law have become synonymous in the mind of the public.
Clearly, Hamilton never expected that the other two branches of government would simply roll over and surrender their power to the judiciary as they have done. Hamilton's argument also indicates that he did not believe that the other branches of government were required to simply of obey whatever the judicial branch dictated, if it contravened the Constitution.
None other than Abraham Lincoln in his first inaugural address stated that if "the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court....the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal".
These recent decisions, and others like them (i.e. Kelo) indicate that many judges believe that the Constitution (and law) is whatever they decide it to be. The judges can be forgiven for thinking this way, since they have been making activist decisions for nearly two generations without paying any sort of a price. Even decisions such as 'Kelo' or the words "under God" in the Pledge of Allegiance, which were condemned by lawmakers on both the left and the right, did not result in a single judge being censured or removed from the bench.
Until the American people (or their elected representatives) come up with a way to fight back against a judiciary that is overreaching, they will not truly be their own masters.