For the past week, we have heard an oft-repeated refrain from many right wing politicians: that a constitutional ban on gay marriage is necessary because "activist judges are overruling the will of the people." They insist that the only way to "reign in" the "out of control" judicial branch is by constitutional amendment. Underneath this rhetoric is the implicit concept that because those who believe (in this case) that gay marriage should be illegal is in the majority, then the country should go along with that majority rule.

While some countries might work that way, this one doesn't. So, for the benefit of those who actually believe the rhetoric, allow me to explain.

This country was founded with the concept that, in order to prevent any one faction in government from becoming dominant, there would be three co-equal branches of government. Each of these branches, like in some sort of high stakes game of rock-paper-scissors, have power over the other branches in some respects, and are subordinate to the other branches in others.

One of the powers and responsibilities of the judicial branch is to interpret the laws, both in respect to themselves, and in respect to the supreme law of the land, the Constitution. Despite this, many conservatives are claiming that they are overstepping their bounds. I would argue that, instead, the judicial branch is simply doing their job.

To understand why, we must look back to that case which is bane of all law students, Marbury v. Madison. The United States Supreme Court ruled in 1803 that if the Constitution is to be the supreme law of the land, then there must be a branch empowered to insure that the government did not overstep the bounds set in that Constitution. To quote the famous language of Chief Justice Marshall:

"It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.

So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty." Marbury v. Madison, 1 Cranch 137 (1803).

If it is "the province and duty of the judicial department to say what the law is," it follows that there would be many different interpretations of what the law means. I am not going to take up that debate here (though I will say that I am not a strict constructionist). However, I think we can all agree that discrimination for doing legal acts has been written out of the constitution, thanks to the 14th Amendment ("No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." U.S. Constitution, Amendment XIV). This aside, some states have more protectionist attitudes towards civil rights, such as the clause that gave rise to Vermont's famous Baker v. State decision: "That government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community, and not for the particular emolument or advantage of any single person, family, or set of persons, who are a part only of that community." Vt. Const., ch. I, art 7.

Considering the judicial branch's responsibility and duty to interpret laws with respect to federal and state constitutions, and considering that the (few) court opinions stating that there is constitutional protection for gay marriage are well-reasoned works, how can we call these actions "activist?" In order to do so, we must face the implicit assumption that going against the will of the majority makes for an activist judge. But isn't doing what is unpopular basically the judicial branch's job? In general, judges are insulated from public opinion (appointed, not elected), and are encouraged to use their extensive legal skills to issue well-reasoned opinions. While I could see calling the judge on the Microsoft Anti-Trust case an "activist," I can't understand how judges offering well-reasoned but unpopular opinions can be called "activist."

We need only look back to the final half of the last century to see the numerous unpopular things judges have done that are now an integral part of our society. If it wasn't for "activist judges" going against the will of the majority, separate but equal would still be inherently equal (overturned in Brown v. Board, 1954), interracial couples would not be permitted to marry (overruled in the (aptly named) Loving v. Virginia, 1967), and unmarried people would be arrested for possession of contraception (struck down in Eisenstadt v. Baird, 1972). In the modern day, any of these laws would seem absurd. But if it had not been for judges recognizing that the Constitution protects us from discrimination and governmental intrusion in to our privacy, we would be living with these laws today.

Of course, the constitution has enshrined in it a way to overrule the opinions of these judges: constitutional amendment. However, in recognizing that, as the supreme law of our land, the Constitution should be a bit harder to change than any old law, the framers made it downright hard to change that document. Any amendment requires two-thirds of the House, two-thirds of the Senate, and ratification by three-fourths of the state legislatures. By that standard, it's amazing we have any amendments to the constitution, let alone one as controversial as the gay marriage amendment.

The truth is that these judges aren't activists, they just are unwilling to put aside well-reasoned legal opinion for the will of the masses. Moreover, their judicial duty precludes them from doing so. Through this lens, the impassioned calls of "activist judges overruling the will of the people" become hollow, and show a lack of understanding of, and respect for, our constitutional system.

But really, what do you expect?