Just consider some of the methods by which the Constitutional Framers instituted a system of limited government. They incorporated into the Constitution the principles of federalism, separation of powers, the Bill of Rights, enumerated powers, reserved powers and the rule of law.
The sobering reality is that every one of those doctrines is undermined when a judicially active court acts as a superlegislature and rewrites the laws according to its whim, as in the Texas sodomy case or the Michigan Law School admissions case where the Court affirmed government-sponsored race-based discrimination.
Regardless of what you think about the propriety of state laws criminalizing sodomy, under our constitutional system, it is a matter for the state governments to decide. There is no provision in the federal constitution -- except the one the Supreme Court has fabricated over the years (the right to privacy) -- that can preempt the states on this issue. Regardless of whether a majority of the Supreme Court justices happen to believe that reverse racism is justified to correct past discrimination, the Court has no right to completely contradict the Constitution in implementing such a rule.
But when moral relativism is the Court's guiding light, it can take away rights or create them out of thin air at the stroke of an arrogant judicial pen. When no fixed principles are immune from the Court's mischief, the entire Bill of Rights is in jeopardy, because there is no longer any reliable protection for the minority against the tyranny of the majority.
Unchecked judicial activism leads to the erosion of all the foundational principles of limited government. Federalism takes a hit because the federal court usurps state prerogatives; the separation of powers is damaged because the Court encroaches into the legislative sphere; the Bill of Rights is assaulted because the 9th and 10th Amendment rights of the people and the states (and the reserved powers doctrine) are diminished. And the rule of law takes a punch to the gut when the highest arbiter of law in the nation says that we are a government of men -- five out of nine robed men, to be more precise -- not laws.
Some so-called civil libertarians are touting the Court's sodomy ruling as a giant step forward for American freedom. It is exactly the opposite.
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