Anything can be used for good or evil, right or wrong. If jurists rule without regard for the Constitution or contrary to it they are legislating. If they rule in accordance with the Constitution they are merely applying the law based on the Constitution.
Our fourth president, “Father of the Constitution” and “Architect of the Bill of Rights,” James Madison, expressed a concern during the Continental Congress in a letter to Thomas Jefferson in France. After stating the need for a majority vote he asked when “a majority ... united by a common interest or a passion cannot be constrained from oppressing the minority, what remedy can be found?”
He was concerned that the government could be taken over by a unified majority faction. He feared a majority faction with no concern for other constraints could undermine the common interest. They might even act without regard for the Constitution.
Wisely the Founders, and members of Congress over two centuries, recognize that the nation needs some procedural safeguards to protect its long term interest from its short-term heated arguments of the day. To use their expression, to defend against the tyranny of the majority.
Thus, they designed the Judiciary branch of our government, with the Supreme Court at the top. Its role in interpreting and applying the Constitution is to make certain we are a government of laws. Their intent was for our legislative acts to be governed by law and not whims. It is the responsibility of the court to interpret the law in cases where there is a dispute. The purpose of an independent court is in order that they might act independently and objectively, the object being the Constitution, and not be influenced by politicians and/or the opinion of the majority. If they judge that a law violates the Constitution regardless of the public popularity held by the majority, it is not valid.
That is their role. It is not political activism. Any court in the land that acts without regard for the Constitution is an activists’ court.
The first line of our Constitution states in part it reason for being to be “to secure the Blessings of Liberty.” Tyranny is written of often in the Federalist Papers though not mentioned in the Constitution. Tyranny is the opposite of liberty. Hence the Founders took the high road and in affirming liberty indirectly sought to safeguard against tyranny.
However, tyranny remains an abiding threat to our liberty. The Supreme Court in its ruling will determine if “a majority ... united by a common interest or a passion” did oppress the minority by not legislating according to the Constitution.
The Rev. Dr. Nelson Price is pastor emeritus of Roswell Street Baptist Church. Contact Price at email@example.com.