The Founders, both of Utah and of the United States insisted on separation of legislative, executive and judicial powers. First the legislative branch makes the law. Then the executive branch enforces the law. Finally the judicial branch gives anyone accused of breaking the law a fair trial. That is how the system can and should work. In contrast, lets consider an alternative governmental system. A person does something that violates no law that has ever existed before. A police office then arrests him. He asks the policeman if he has broken any law. The policeman replies that he does not know yet, because the law will be made by the judge when the accused gets his trial. Is this second alternative just? This is the legal system that judges are imposing on us when they make law from the bench. A similar problem of unpredictability occurs when judges make up the Constitution as they go.

The Founding Fathers of the United States considered the concentration of legislative, executive and judicial powers into the same hands as tyranny.

Activist judges have moved us far along the path to tyranny of this kind.

Judicial activism also presents us with another very serious problem. We learn from the most famous sentence in the Declaration of Independence that just power comes from the consent of the governed. To go into effect, a constitution must be ratified by the people. Once the Constitution has been ratified, its provisions set the limits on the powers which the people have consented to grant. A judge who reinterprets the constitution to get it to mean something that the people did not intend is claiming the authority to expand his own powers beyond what the people agreed to allow.

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” (The tenth amendment to the United States Constitution). This amendment talks about powers, not about rights. A judicial activist who declares unconstitutional any state law or local ordinance that he happens to disagree with, is stripping state or local governments of the powers explicitly reserved to them by the U. S. Constitution. Clearly such an act is a violation of the Constitution, which is the great barrier that defended the rights of the people.

Speaking of the branches of Government, James Madison, whom historians call the father of the U. S. Constitution, wrote: “Neither must either of them [the branches of government] be suffered [or allowed] to overleap the great barrier that defends the rights of the people. The rulers, who are guilty of such an encroachment, exceed the commission from which they derive their authority, and are tyrants. The people, who submit to it, are governed by laws made neither by themselves nor by an authority that derives from them and are slaves.” (A Memorial and Remonstrance against Religious Assessments, 1785) …the members of the several State Legislatures, and all executive and judicial Offers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution…(U S Constitution, article 6, section 1, clause 3). State level officials must swear an oath to support the Constitution of the United States. Do we support the Constitution by obeying those who exercise unconstitutional power?

We are obligated to befriend that law, which is the constitutional law of the land, and I will do so, but there is no such thing as a constitutional law that was made by a judge.

Were the Founding Fathers of the United States heroes or were they criminals? If they were heroes, than how can it be our duty to do the opposite of what they did? What did they do when confronted with the tyrannical acts of the British King and Parliament? Did elected officials at the colonial level submit or did they resist? The middle part of the Declaration of Independence is a list of the accusations that the people of the Colonies made against King George. Note this interesting item near the middle of that list. “He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.”

In the twenty first century, one state level officer did understand and do his duty to uphold the U. S. Constitution. Roy Moore was the chief justice of the Alabama state Supreme Court. A federal judge ordered him to remove a monument of the Ten Commandments. Justice Moore checked the U. S. Constitution; found that the federal judge had no constitutional power to issue such an order, (because the modern dogma of separation of church and state is a distortion of the first amendment to the Constitution as I explain in my essay on freedom of religion).

Justice Moore then refused to remove the monument. What happened? Other Alabama judges forced Moore out of office, with the enthusiastic support of the Republican establishment of that state. In contrast, what does the Constitution Party think of Roy Moore? At one time Moore was the front runner for the 2008 Presidential nomination of the Party.

Before leaving the subject of judicial activism, one more observation is critical. Judicial activism is one of the primary driving forces behind the moral decay of the United States. Activist judges have driven God out of our public schools and other institutions; have legalized abortion on demand; have stimied the efforts of state and local governments to combat pornography; and have even persuaded Republican Governor Mitt Romney to sign legislation to recognize of homosexual unions as marriage in Massachusetts, etc. Citizens with conservative views on social issues are in desperate need of a confrontation with activist judges.