One issue that seems to be addressed rarely, accept in a handful of conservative circles, is how courts should interpret law. Yet the ‘how’ is often more important than the ‘what’. Legislating through the courts is becoming either accepted or simply ignored. When the idea of ‘conservative courts’ or ‘strict constitualist courts’ are discussed it is a loaded issue that brings to the surface a myriad of social issues in particular. However, the desire to have ‘conservative courts’ shouldn’t mean one has to have a conservative social views.
Take gay marriage as an example. One can be in favor of either civil unions and/or gay marriage, but also think that the courts should not be creating the institution via court hearings. With most state constitutions having been written well over one hundred years ago; the idea that gay marriage was even a consideration in the framer’s mind is a bit silly. This is clearly an example of legislating from the bench. However, this in no way prevents legislators from writing and passing laws that allow for civil unions and/or gay marriage. Essentially, the argument is that abuot the role of judicial branch, and not the validity of the cause.
The reason for opposing legislating from the bench is to keep the integrity of the system. If gay marriage can be interpretted from a 200 year old document, most anything could be interpretted from that document. These ‘interpretations’ are creating laws, which is the role of the legislative branch not of the judicial branch. It degrades the democracy to not allow laws to come up for a vote, instead it gives judges a power that they were never intended to have. State constitutions are in most cases quite remarkable legal documents intended as a guide to the rules and laws. The strength of state and federal systems lay in the division of powers, muddling those responsibilities weakens that structure. The issue itself in these cases is actually secondary, it’s the integrity of the system that is of concern. Let the people and/or legislators decide up or down what new laws they want to see passed or rejected, and create new legislation the old fashion way – through democracy.
