That gets the Madisonian vision exactly backward, of course. America’s first political principle may indeed have been self‐government, but its first moral principle–and the reason the people instituted government at all–was individual liberty, as the Declaration of Independence makes plain for “a candid world” to see.
Indeed, we did not throw off a king only to enable a majority to do what no king would ever dare. Rather, the Founders instituted a plan whereby in “wide areas” individuals would be entitled to be free simply because they were born so entitled, while in “some” areas majorities would be entitled to rule not because they were inherently so entitled but as a practical compromise.
That gets the order right: individual liberty first; self‐government second, as a means toward securing that liberty–with wide berths to state governments, which were later reined in by the Civil War Amendments. That is why the Constitution enumerated the powers of Congress and the executive, to limit them. And that is why the Bill of Rights concludes with the Ninth and Tenth Amendments: to make clear that Americans begin and end with their rights, enumerated and unenumerated alike, while government proceeds only with the power it is given.
The New Deal changed all that, of course, not by amending the Constitution, the proper method, but by radically reinterpreting it: in particular, by reading the General Welfare and Commerce Clauses not as shields against power, as they were meant to be, but as swords of power; then by turning the Bill of Rights into a document of “fundamental” and “nonfundamental” rights.  None of that was found plainly in the Constitution–to the contrary, the entire document tends plainly the other way. Rather, it was invented virtually out of whole cloth, by the New Deal Court, to make way for the New Deal’s political agenda.
Our modern problem of overweening, inconsistent, incoherent statutory law began, then, not with an activist Court–to the contrary–but with an activist Congress and executive branch, bent on expanding government power. In time, however, the problem was abetted by an activist Court–succumbing to pressure from the political branches. But as noted earlier, the Court’s “activism” was not as we think of it today–a search for rights not apparent in the Constitution. Rather, it was activism in finding rationales for power–what conservatives today call deference to the political branches.
It needs to be said again, however, that the New Deal Court’s activism was not entirely without legal foundation. The sources for the Court’s rulings were there, in the Constitution, even if it did take a high degree of creativity, to be charitable, to draw them out, and even if doing so did fly in the face, for the most part, of a century and a half of constitutional jurisprudence that went the other way.
We come, then, to the bottom line in all of this. Law, including constitutional law, is not written in immutable stone. It is to some extent malleable, of necessity, and is given life by those charged with giving it life–the judiciary. In doing their work, however, judges do not work in a vacuum. They work instead in a larger political climate. If we who shape that climate persist in believing that it is proper for government to be addressing our every problem, no matter how trivial or personal, and persist in believing that our Constitution can legitimately be read to authorize that result, then we should not be surprised that the judiciary is dragged along to play its part in the process–today, often, to try to undue the mess that legislatures make of the effort. 
Yes, judges today often thwart the majoritarian will–as a vestige, perhaps, of their former principal role. Just as often, however, a judge may see himself as simply a facilitator in the grand enterprise of government. We are coming to the close of what has rightly been called the century of government–more accurately, the century of failed government planning. If we are unhappy with the role the judiciary sometimes plays in this setting, it may be that we need to look first to the material we give judges to work with–the reams of statutory material we have enacted over the course of the century.
The Founders had a simpler vision in mind when they set out to craft our legal order. They left most human affairs to private ordering, not to government planning. That gives the judiciary–and Congress–relatively little to do. Is that not what critics of judicial activism want?
A curriculum vitae is attached. Pursuant to House Rule XI, clause 2(g)(4), neither I nor the Cato Institute receives any federal funds–as a matter of principle.
I have discussed the issues that follow more fully in: “Congress, the Courts, and the Constitution,” Cato Handbook for Congress (105th Congress), ch. 3 (esp. pp. 36–42), (1997); “A Government of Limited Powers,” Cato Handbook for Congress (104th Congress), ch. 3 (1995) (reprinted as “Restoring Constitutional Government,” Cato’s Letter No. 9 (1995)); “Rethinking Judicial Restraint,” Wall Street Journal, Feb. 1, 1991, at A10 (op‐ed); “Constitutional Visions,” Reason, Dec. 1990, at 39–41 (review of Robert Bork’s The Tempting of America); “Legislative Activism, Judicial Activism, and the Decline of Private Sovereignty,” in Economic Liberties and the Judiciary (J. Dorn & H. Manne eds., 1987); and “On the Foundations of Justice,” 17 Intercollegiate Rev. 3 (1981).
Lino Graglia, “It’s Not Constitutionalism, It’s Judicial Activism,” 19 Harvard Journal of Law & Public Policy, 293, 298 (Winter 1996).
Robert H. Bork, Slouching Towards Gomorrah 114 (1996).
“Remarks of Sen. Orrin Hatch Before the Federalist Society’s 10th Anniversary Lawyers Convention,” Senate Judiciary Committee News Release, Nov. 15, 1996, at 4.
Id., at 5 (original emphasis).
John Ashcroft, “Courting Disaster: Judicial Despotism in the Age of Russell Clark,” March 6, 1997, at 4 (MS available from the office of Senator Ashcroft).
Id., at 3.
Ralph Z. Hallow, “Republicans out to impeach ‘activist’ jurists,” Washington Times, March 12, 1997, at 1. See also Katharine Q. Seelye, “House G.O.P. Begins Listing A Few Judges to Impeach,” New York Times, Mar. 14, 1997, at A24.
This very brief overview barely touches on the vast body of both scholarly and popular literature on the subject, to say nothing of political activism about judicial activism. In this last category, for example, is the Judicial Selection Monitoring Project of the conservative Free Congress Foundation’s Center for Law & Democracy, which on January 27, on behalf of 260 grassroots organizations and 35 radio and television talk show hosts, petitioned President Clinton and members of the Senate to nominate and confirm only those candidates for the federal bench who are committed to judicial restraint.
Michael Kelly, “TRB from Washington: Judge Dread,” The New Republic, Mar. 31, 1997, at 6. See also Laurie Kellman, “Republicans rally ’round judge‐impeachment idea,” Washington Times, Mar. 13, 1997, at A1: “The plan is aimed in part at reviving Republican morale, which has flagged this year because of Mr. Gingrich’s ethics troubles and the majority’s sparse floor schedule,” at A18.
See, e.g., Terry Eastland, “Deactivate the Courts,” The American Spectator, Mar. 1997, at 60. For a fuller treatment of why conservative efforts to influence the courts have been so unsuccessful, see James F. Simom, The Center Holds: The Power Struggle Inside the Rehnquist Court (1995). For a critique of that book, and the Court itself, see Roger Pilon, “A Court Without a Compass,” 40 New York Law School Law Review 999 (1996).
Coalition for Economic Equity v. Wilson, 946 F. Supp. 1480 (N.D. Cal. 1996).
United States v. Bayless, 913 F. Supp. 232 (S.D.N.Y.), rev’d on rehearing, 921 F. Supp. 211 (S.D.N.Y. 1996).
United States v. Virginia, 116 S. Ct. 2264 (1996).
Coalition for Economic Equity v. Wilson, 1997 U.S. App. LEXIS 6512 (9th Cir.).
Bruce Fein, “Judge Not,” New York Times, May 8, 1997, at A39. Cf. Debbie Kaminer, “Thou Shalt Not Display the Ten Commandments in Court,” Legal Times, May 5, 1997, at 27; Terrence P. Jeffrey, “Governor James at the Courthouse Door,” Human Events, May 9, 1997, at 6.
“To the extent that these [New Deal policies] developed, they were tortured interpretations of a document [i.e., the Constitution] intended to prevent them.” Rexford G. Tugwell, “A Center Report: Rewriting the Constitution,” Center Magazine, Mar. 1968, at 18, 20.
Robert H. Bork, The Tempting of America 139 (1990)(emphasis added).
I have discussed these issues more fully in Roger Pilon,“Freedom, Responsibility, and the Constitution: On Recovering Our Founding Principles,” 68 Notre Dame Law Review 507 (1993).
Thus, the Court has long been criticized by conservatives for its 1971 decision in Griggs v. Duke Power Co., 401 U.S. 424, which gave rise to the “effects test” in antidiscrimination law and to a host of affirmative action programs. But in interpreting the language of section 703 (h) of the Civil Rights Act of 1964, which authorizes “any professionally developed ability test” that is not “designed, intended, or used to discriminate because of race” (at 433, emphasis by the Court), the Court simply drew upon the ambiguity of “used.” Congress could later have addressed that ambiguity, of course, but it did not. In cases like this, then, responsibility rests ultimately with Congress.