Liberal myth

It is the role of judges to identify and fix problems with our society.

The facts

The role of judges is to interpret the law as it is written, not to create new law. The creation of law is the proper role of legislatures.

The rule of law

Our society is based on laws that apply equally to everyone.

• The U.S. Constitution and other laws have fixed, objective meanings that do not vary depending on who is in power.
• The meaning of the U.S. Constitution is not dependent on the fashionable trends or notions of any era.
• It is improper for judges to inject their personal policy preferences into the law. When they do this, they replace the rule of law with the rule of judges.

Who makes law?

• It is the role and duty of judges to say what the law is rather than what they want it to be.
• The people elect legislators and executives to enact and enforce the law. It is the proper role of elected representatives to direct the development of the law.
• Liberals who argue that judges should create constitutional doctrines to support their social policies are usurping power from the people.

Judicial philosophy, not political philosophy

A political philosophy will shape a person’s views about what the law should be. Judicial philosophy, however, is only about methods of judicial decision-making.

• A judge’s political beliefs are irrelevant unless the judge’s judicial philosophy is to usurp policy making authority from the people.
• The rule of law is premised on the bedrock principle that law can be objectively determined and fairly applied regardless of who is in power.
• A judicial philosophy that respects the rule of law also protects the rights of the people to self government through representative democracy.

What the Founders thought

• “Laws are made for men of ordinary understanding and should, therefore, be construed by the ordinary rules of common sense. Their meaning is not to be sought for in metaphysical subtleties which may make anything mean everything or nothing at pleasure.”
  — Thomas Jefferson
• Ours is “a nation of laws and not of men.”
  —John Adams
• “The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. … [Judges] ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.”
  —Alexander Hamilton
• The “inflexible and uniform adherence to the rights of the Constitution, and of individuals, [is] indispensable in the courts of justice.”
  —Alexander Hamilton

Related Heritage research

• Edwin Meese III, Matthew Spalding, and David Forte, The Heritage Guide to the Constitution.
• Rebecca Hagelin, “The Proper Role of Judges,” August 30, 2005
• Mandate for Leadership 2005: “Where We Stand: Our Principles On Restoring the Proper Role of the Courts”
• Todd F. Gaziano, “A Diminished Judiciary: The Causes and Effects of the Sustained High Vacancy Rates in the Federal Courts,” October 10, 2002
• Thomas G. West, “Conservatives, Liberals, and the Founding: The Meaning of the Debate Over Natural Rights,” October 4, 1988