I've been hearing politicians, and others, using the complaint about judges "legislating from the bench" the last few years and to be honest, I get truly irritated when I hear someone use this phrase. The way our republic was set up, and the way it operates to this day, is that the legislative branch writes and enacts laws, the executive branch implements and enforces laws and the judicial branch, when asked, determines if those laws are in accordance with the Constitution. The Constitution is not only the living, breathing document that guarantees the rights of the citizens, it also the instrument that protects the minority from the majority. I know many people hate to hear that, but it is the truth of our republic.
So the job of a federal judge is to be the first line of defense for legislation to determine if that legislation falls within the scope of the Constitution. According to our system, if a district court judge rules and one of the parties disagrees with that ruling, they have the right to appeal to the circuit court of appeals for their jurisdiction. Again, if one of the parties disagrees with that court's ruling, they have the right to appeal to the United States Supreme Court, the ultimate decider of all things Constitutional. However, each of the courts and judges mentioned has an absolute mandate to follow and rule within the scope of the Constitution, hence a judge ruling a law is either constitutional or unconstitutional.
Therefore, when a judge rules a law as unconstitutional (s)he is not legislating (writing/enacting) law, but rather they are stating that the law as the basis of the suit brought before them is not in line with the constitution and therefore it must be abolished or the activity that law enables or bans is either banned or enabled. Of course, most of us know there's only one area where people are complaining about "activist judges" and "judges legislating from the bench" and every single one of those people are arguing in support of laws that ban or restrict certain activities. I am not going to state an opinion on whether I think either side is right or wrong or whether the activity in question is right or wrong or should or should not be legal. My only topic here is the workings of our court system and the role of the legislative, executive and judicial branches of our government in the issue.
Earlier, I used the phrase "protecting the minority from the majority," the sad fact is that many in this country do not believe in that concept. They believe the Constitution is there to protect the right of the majority to whatever they desire and the minority has no voice in the matter. If the United States of America were, in fact, a democracy, then the rule of the majority would in fact be unquestionable and the minority would have no voice; which is exactly why our founding fathers, in their great wisdom, founded this country as a republic, not a democracy. We are a republic with a democratic system and our Constitution ensures the rights of all citizens whether they are part of the majority or the minority.
Very few would argue that slavery is acceptable, today. Yet, at one time in our country the majority of people believed slavery was perfectly acceptable, and some even believed and stated that slavery was not only sanctioned but blessed by God. You'd be hard pressed to find a sane, reasonable person today who would make such a statement. However, the point is that if we were truly a democracy and our Constitution did not guarantee protection of the minority from the majority, slavery would, in a small likelihood, still be accepted and practiced to this day in the United States of America. Even if it weren't, in a democracy, the rights and freedoms of the black race in the US would not be what they are today because there would have been no Civil Rights Acts to guarantee their freedoms and rights, as the majority would have ruled and there would have been no recourse for the minority to challenge those laws and decisions.
There are Biblical references that could be applied to the topic that generates most of the charges of "legislating from the bench," but this particular topic is not about the Biblical viewpoint but rather the Constitutional one. The Biblical context is part of a different blog post.