“The very definition of a republic is ‘an empire of laws, and not of men.’” John Adams
Over the last few decades Americans have gotten used to the idea that Supreme Court Justices can and should create new “Constitutional” principles, as grounds for overturning laws that they, the justices, do not like. In an off-the-record conversation with Supreme Court clerks, Justice Thurgood Marshall once described this judicial philosophy quite candidly: “You do what you think is right, and let the law catch up.” (Justice Marshall had the good sense to abstain from statements like that in public.) A close look at American history will show that the kind of judicial activism Justice Marshall was talking about was not seen as either normal or proper when our nation was founded. But, ironically, the very scholars we trust to teach American history to the next generation of voters have been hiding the historical context of the issue.
Having judges create new government policies based on what they “think is right” violates in both letter and spirit the Separation of Powers principle that the Founding Fathers labored so hard to build into the US Constitution, and it was extremely rare until the late twentieth century; but don’t expect to hear that in a typical college history class.