I ran across this quote quite by accident, but it is holds a key concept in the ongoing debate about the role of "activist judges" in same-sex marriage cases, expressed much more elegantly than I have been able to do.
“The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.” — Supreme Court Justice Robert Jackson, West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943)
"The will of the people" as applied to decisions on fundamental rights and liberties is and always has been a crock. It has no support and no justification except as a device to undercut the authority of the courts, which has been a right-wing goal for years -- if you can't control them, get rid of them.
If you're gonig to try to tell me that the Founders didn't mean it, you're going to get laughed at.
That's just the way it is.
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