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America’s courts are supposed to be one of three separate but co-equal powers, ensuring the rights of all Americans are protected against encroachment by the legislative or executive branch, as well as against state and local governments. Too often, however, the courts either step away from this role and allow the other branches to trample on individual rights or they ignore constitutional limits on their power and assume the role intended for the legislative and executive branches.

Recent examples of this include the case of Kelo v. City of New London in which the Supreme Court held that government could seize one person’s private property and give it to another private party if it was done under the guise of economic development, and the many state courts that have taken it upon themselves to usurp the role of the legislature by decreeing same-sex marriage is a fundamental right.

Our legal system needs to restore the notion that the first and foremost duty of judges is to responsibly apply the law as it was written. Where ambiguity or uncertainty exist, the original intent of those passing it should be considered, with deference given in all cases to protecting the rights of individual citizens against an overbearing government.

This means in many cases judges will uphold laws that are bad policy and strike down laws that are good policy, or strike down popular laws while upholding unpopular ones. Appropriate judicial review means ignoring whether the law leads to good or bad results, in the eyes of the judge, but whether the law violates the Constitution.

The idea that the constitution is a “living document,” subject to the changing whims of the public and elite opinion, is inconsistent with our legal tradition of the rule of law, and threatens the very freedoms that make America an exceptional nation. Future leaders should ensure judicial nominees and candidates are committed to upholding the law and the constitution, not their own policy preferences.


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