Philosophical Origins and Intents

 Alexander Hamilton, James Madison and John Jay wrote a set of 85 essays known as the Federalist Papers between October 1787 and August 1788. Their purpose? To explain and advocate for the ratification of the newly-proposed U.S. Constitution, drafted during the summer of 1787 at the Philadelphia Constitutional Convention. Several of those essays dealt with Article III of the Constitution concerning the powers and duties of the federal judiciary. In Federalist #78, authored by Hamilton, we gain a clear understanding of the Founding Fathers’ view on the limits on judicial power:

…the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments. [Emphasis added.] 

We have a government made up of three distinct branches: the legislative, the executive and the judicial. This “separation of powers” was created not for each branch to battle the others, but rather to provide “checks and balances” against any possible excesses by one of them. The three branches were meant to complement each other by operating within their own sphere of authority, and were never to exercise powers and prerogatives granted to the other branches.

The Rise of Judicial Activism

During the past 60 years, many federal judges (followed closely by their state counterparts) have gradually strayed from the constitutional role of interpreting the law – providing “judgment,” to use Hamilton’s word – to actively legislating from the bench, especially in controversial areas of social policy. In other words, activist judges at the federal and state level have abandoned the Founders’ understanding of the constitutionally limited judicial function and have usurped the legislative function (without admitting it, of course) in order to impose a radically liberal vision for America. That vision includes such things as creating previously unknown constitutional “rights” to abortion and same-sex marriage, for example.

Since federal judges are appointed for life, their lack of accountability to the democratic will of the people makes such judicial activism especially dangerous. Hamilton argued in Federalist #78 that the Constitution’s “good behavior” qualification on judges’ lifetime appointments would suffice to keep them in line, but in practice it has not been used to rein in activist judges. It is ironic that the Founders proposed lifetime appointments for federal judges because they most feared overreaching by the legislative branch, while considering the judiciary the “least dangerous” branch. 

Activist Judges and the “Living” Constitution

Judges who legislate from the bench, however, never admit that their actions violate the judicial function. In order to justify their judicial activism, judges (and the constitutional law professors responsible for training them) have employed the “living Constitution” model of constitutional interpretation. This model argues that our Constitution needs to be interpreted in light of evolving values and societal developments.

They argue that the Founders would never have desired or created a rigid, inflexible document wedded to a late-eighteenth century understanding of its provisions and the societal norms undergirding them. However, that argument ignores both the general purpose of the Constitution as a foundational governing document as well as the vehicle for change contained in the document. Justice Scalia is fond of saying that the Constitution is not a living, breathing organism, but rather a legal document that says some things and doesn’t say other things.

The answer to the question of adaptability of our Constitution is found in the amendment process, an intentionally difficult procedure that requires wide public support and approval for such a change. That built-in difficulty is meant to keep the Constitution’s foundational principles from being changed at the whim of a minority, yet responsive to the will of the majority.

For judges to effectively bypass that procedure by creating new constitutional “rights” out of whole cloth is at once unconstitutional and anti-democratic. A “living Constitution” philosophy is nothing less than an excuse for activist judges to impose their personal preferences upon an unwilling citizenry in the name of “evolving standards,” which they alone are entitled to discern. 

The Courts and Foreign Law

In recent years, activist courts have increasingly appealed to laws, documents and court decisions from foreign countries in order to justify judicial results not supportable under our own Constitution and laws. For example, in 2003, the Supreme Court ruled in Lawrence v. Texas that sodomy was a constitutional right, citing the European Convention on Human Rights and recommendations from a “committee advising the British Parliament” as legal justification for an “emerging awareness” concerning sexual issues.

That same year, the Massachusetts Supreme Judicial Court looked not only to Lawrence, but also to the Canadian courts for support for its ultimate exercise of judicial overreaching in declaring that the Massachusetts Constitution required the state to license same-sex marriages.

As liberal judges continue look to their counterparts in Europe and elsewhere for help in changing America’s social landscape, our nation’s deeply held beliefs and constitutional freedoms get erased by judicial fiat.

In addition to usurping legislative authority and violating the principle of “separation of powers” that lies at the very heart of our Constitution, judicial activism poses one of the greatest threats to the moral foundation of our country and to the religious freedoms of its people. 

An Ominous Trend

As liberal courts continue relatively unchallenged in their quest to impose a radical social agenda on the nation, the damage already done should move us to concern and then action. The following are examples of the consequences of abandoning the proper role of judges in favor of legislating from the bench:

  1. Abortion. Abortion is a national tragedy. Since Roe v. Wade was decided in 1973, it has been estimated by the abortion industry itself that more than 45 million babies have been aborted. That horrible decision was itself a travesty of legal reasoning, as even liberal constitutional scholars have readily admitted; yet, it was made possible by an earlier (and equally horrible) Supreme Court decision in Griswold v. Connecticut that created a so-called constitutional “right to privacy.” That “right of privacy,” the Court asserted, was not found in the text of the Constitution or amendments but in the “penumbras, formed by emanations” of the Bill of Rights. 

    Neither of these decisions can be explained or justified by constitutional standards, although “living Constitution” advocates will try. And, if more liberal justices are appointed to the Supreme Court in the next few years, it is entirely possible that existing state and federal laws regulating certain aspects of abortion practice, such as parental notification, informed consent and partial-birth abortion bans, will be struck down as unconstitutional – erasing laws which have saved thousands of lives over the years.

  1. Homosexual “Rights.” Lawrence v. Texas was the 2003 Supreme Court decision that declared homosexual sodomy to be a protected “privacy right” under the Constitution, even though the Supreme Court had only 17 years earlier declared it legitimate for a state to criminalize it. One can draw a straight line from the activist domino toppled in Lawrence to the Massachusetts same-sex marriage decision that same year to the California Supreme Court’s imposition of same-sex marriage in 2008. The California court went so far as to equate homosexuality with race, sex or religion, as far as constitutional protection is concerned. 

    As outrageous as that may sound, we have learned from painful experience over the last several years that homosexual “rights” already trump the First Amendment’s religious liberty protection where the two collide. Because of the success of the homosexual agenda in the courts, we have seen the following losses on the religious liberty side:

    • Parents in Massachusetts can not “opt out” their children from elementary school teachings on homosexuality
    • Physicians in California cannot object to providing artificial insemination to a lesbian on religious grounds.
    • A church in New Jersey cannot refuse to let a lesbian couple use its facilities for a same-sex commitment ceremony without losing part of its tax-exempt status.
    • A Christian couple operating a photography studio in Albuquerque can be fined for refusing to photograph a same-sex commitment ceremony.
  1. Religious Liberty. In 1947, the Supreme Court decided to drastically alter its First Amendment jurisprudence by misusing Thomas Jefferson’s “wall of separation between church and state” metaphor, in effect using it to replace the First Amendment’s “establishment clause.” 

    Since that 1947 case, Everson v. Board of Education, the Supreme Court has ventured into a litany of increasingly conflicting, confusing and restrictive religion clause decisions that effectively stifle the free exercise of religion in the public square, turning the original meaning of the First Amendment on its head. Instead of keeping the government from interfering with the free exercise of religion, the “wall of separation” has insured that the federal government – via the courts – is now firmly entangled in every conceivable situation where religion touches public life. 

Our Standards

Focus on the Family believes that the judicial system plays a vital role in our government, our families and society in general. Therefore, we hold the judicial branch and its officials to a very high standard.

The federal judicial system set up by the Founders held up the ideal of limited judicial authority: Judges should stick to offering “judgment” and exercising “neither force nor will.” We think that this system served this country and its citizens well until the Supreme Court began abrogating more and more power to itself in the post-World War II era, leading other courts into doing the same through its example. More importantly, many Americans have acquiesced, through inaction, to the notion that court-mandated social change is acceptable, or at least tolerable, and thus fail to demand accountability of such rogue courts. Instead of being impeached, activist judges are hailed in the liberal press and elite law schools as heroes, which only feeds the problem.

And, since an activist court decision is easier to obtain than a constitutional amendment or even the passage of a law when the majority opposes it, liberals have turned to the courts for enactment of social policies that would otherwise fail at the ballot box. This tyranny by judicial fiat is destructive to our democratic institutions and has resulted in the deaths of millions of preborn human beings, the redefinition of marriage and the trampling of religious freedoms.

What is a “Strict Constructionist” Type of Judge?

“Strict construction” is the judicial philosophy that judges ought to employ when interpreting constitutional provisions or statutes. This includes applying the plain meaning of the language used (a process that has been called “textualism”) rather than reading meaning into the language that is not there. Then, if the meaning of the language is still not clear, judges should look at how the drafters of the language and the people who originally applied it to their own lives understood it. This is commonly called “originalism.”

The combination of textualism and originalism has been lumped together under the umbrella term “strict construction,” even though many legal scholars and jurists, such as Antonin Scalia, prefer to use the phrase “textualist/originalist” to describe themselves. Other scholars simply use the phrase “constitutionalist.”

Nevertheless, the concept is the same: Judges should look first at the text and then at the original understanding of the language to discern the meaning of the language. When used to interpret constitutional or statutory language, a strict constructionist philosophy serves as a roadblock to temptations for judicial excursions into personal preferences, while leaving the legislative role for the people and their elected (and accountable) representatives.

Judicial Nominations

We support judicial nominees who subscribe to a “strict constructionist” judicial philosophy and oppose nominees who have a history of judicial activism.


  • The U.S. Constitution granted law-making power to the legislative branch and gave the Courts no authority to legislate from the bench.
  • The judiciary was intended by the Founders to be the “least dangerous” branch of government because it could exercise neither force nor will, but only judgment.
  • Judicial activism dangerously breaches the constitutional separation of powers.
  • A changing society does not require that judges change their interpretation of the Constitution or make and modify laws.
    • The most effective way to apply constitutional mandates to a changing society is for the legislative branch to pass new laws or revise outdated laws. In this way, elected representatives are held accountable to enact the will of the people.
    • Constitutional amendments provide another constitutional method to adapt the Constitution.
    • Judges, primarily un-elected officials appointed for life, are not accountable to the people for their actions and, thus, should not be allowed to legislate.
  • Courts were not meant to protect minority rights through their liberal interpretation of laws. The people, through laws and amendments, have been most successful at protecting minority rights.
    • Brown v. Board of Education is typically cited as an example of the necessity for, and success of, judicial legislating to protect minority rights. However, Brown merely reversed another bad Supreme Court decision in Plessy v. Ferguson. The citizens of the United States were the ones who legislated the guarantee of equal protection when they passed the 14th Amendment. It was the Supreme Court in Plessy in 1896 that approved the “separate but equal” notion of equal rights in the first place, and that judicial mistake lasted for almost 60 years until Brown. Courts have been the problem in many instances when it comes to minority rights, not the solution.
  • To ensure that strict constructionist judges are appointed to the bench, we must:
    • Demand accountability from our president who nominates federal judicial candidates and from our senators who vote for or against those candidates.
    • Vote for presidential and senatorial candidates who will nominate and approve only those judges who adhere to strict constructionist judicial philosophy.
    • Demand the impeachment of judges who act unconstitutionally through their activism. Admittedly the American people and their elected representatives have been historically loathe to enforce the ultimate sanction against judges. However, the Constitution is clear that federal judges only hold their lifetime office “during good behavior.” Judicial activism is the antithesis of “good behavior.”
    • Demand that law schools teach both the history of the Constitution and the proper respect for the text and original understanding of the document. Most constitutional law professors don’t even require that students read the U.S. Constitution, let alone understand why its specific language was chosen or how it was understood at the time.
    • Refuse to accept the argument that a “living Constitution” is somehow a valid judicial philosophy. The “living Constitution” is a merely a fig leaf used by liberals to justify judges becoming legislators.