The judicial branch exerts oversight over the legislature when it reviews legislation. This review must focus solely on whether a given law breaches the constitution. Some claim the courts should be empowered to strike down objectionable laws, even if they do not breach the constitution. This argument was made as early as 1610, when England’s Lord Chief Justice Coke claimed: “When an Act of Parliament is against common right and reason, or repugnant … the Common Law will control it, and adjudge such Act to be void.”. (Dr Bonham’s Case.)
While Coke’s reasoning may be seductive, it is utterly wrong. Judges, plumbers, engineers, policemen, and every other station in society have their proper functions and should not exceed their legitimate bounds—even in a good cause. Judges should stick to interpreting the law and leave legislating to the legislators. Judges have no more business legislating than army officers do.
Some may protest that changing the constitution is too slow, and injustice in the meantime goes without a remedy. But by this logic you might as well say the courts are too slow and therefore debts should be collected at gunpoint. For a legal system to work, it must be respected, otherwise small exceptions, even when made with the best of intentions, will quickly accumulate to the general ruin. Justice Hugo Black explained:
It can be … argued that when this Court strikes down a legislative act because it offends the idea of ‘fundamental fairness’ it furthers the basic thrust of our Bill of Rights by protecting individual freedom. But that argument ignores the effect of such decisions on perhaps the most fundamental individual liberty of our people—the right of each man to participate in the self-government of his society … The people, through their elected representatives, may of course be wrong in making those determinations, but the right of self-government that our Constitution preserves is just as important as any of the specific individual freedoms preserved in the Bill of Rights. The liberty of government by the people … should never be denied … except when the … laws passed by their chosen representatives, [conflict] with the … Constitution. (Dissenting opinion In re Winship, 397 U.S. 358 (1970).)
