During the recent confirmation hearing, I got the impression that Democrats tend to advocate the idea that the Supreme Court is a Super-Legislature with the right to change and interpret the laws of congress and the Constitution away from the meanings they held at the time the law was passed. This concept is often referred to in conservative circles as "judical activism", though Democrats seem to prefer terms like "a living Constitution"
But regardless of the name choosen to describe it, I was wondering why Democrats would willingly associate themselves with such an idea.
The concept (and possible danger) of judicial interpretation resulting in a "living constitution" was brought forth by the Anti-Ratification writer, Brutus. Brutus claimed that the Constitution would allow such interpretation and would be dangerous to ratify for that reason, as it would allow Judges to become despots, not bound by or accountible to the will of the people. The Federalist Papers (written at the same time by John Jay, John Madison, and Alexander Hamilton) deny that the Constitution allowed such an interpretation, and explicitly stated that changes in the Constitution were only to be allowed through the amendment process there-in described. The Constitution was ratified with this understanding.
This is not to say that where the Document or laws are unclear on a small point that interpretations are not allowed. However the cases cited by Democratic leaders in support of judical activism are often directly contradictory to the construction used and understood by the people who ratified the document or law, and are NOT arguments over fine points or gray areas in the law.
Since the Legitimacy and Authority of the Constitution rests on that document's Ratification by the People of the United States, why do some Democrats, Progressives and Liberals believe that Federal Judges have the power or ability to change the meaning of that document without the consent of the people? This position appears to be a denial of the principle of majority rule, and the intended operation of the Federal Government as expressed by the Founding Fathers. Even the protections for individuals and minorities in the Constitution were granted by the super-majority that Ratified the Constitution and its amendments.
The same thing happens when the decisions of a legislature are overturned. The Civil Rights act was only passed in Congress because it was explicitly Stated by its proponents that it would not allow racial quotas. Many Democrats Laud the court decsion that reversed that understanding. Likewise in Mass. an Amendment to their State Constitution was passed by the people with the understanding that it would not be used to justify the imposition of Gay Marriages upon the people. Democrats laud the decision that used that amendment to do just that.
Different individuals look at those decisions and feel they were the "right ones", and hence advocate judical activism as an acceptible practice. However, in doing so, they are denying others their Human and Political rights. As imperfect as Majority rule (or our implementation of that principle) can sometimes be, we live in a society that has decided to use the Majority as the guiding rule in our decision making process. Part of that process dictates that decisions, once made, are binding on everyone, even those who dissented. Thus I have a hard time understanding Democratic (liberal, progressive...) advocates of Judical Activism.
Do Democrats simply not believe in Majority Rule by some Philosophical Axiom I am unaware of?
Are Democrats so jaded and disgruntled with the current system that they believe that they are justified in manipulating that system in any way they can in order to get their way?
Could this have anything to do with why Democrats are having a difficult time at the polls?