Law Interpretation

It has been said that “The judge's role is not to make the law, but to uphold and apply the law.” Several years ago, the Massachusetts Supreme Court, followed in later years by the supreme courts in several other states, ruled that state statutes prohibiting homosexual couples from marrying violated federal and state Constitutional guarantees of “equal protection under the law.” As a result of those decisions, gay marriage is now legal in those respective states (the California Supreme Court decision is currently under review in the federal appellate courts). Did these jurists (judges) “interpret” or apply the law, or did they “make” new law? In defending your answer, explain whether or not you believe this case can be distinguished from “Brown v. Topeka Board of Education,” the 1954 case in which the U.S. Supreme Court ruled that the “separate but equal” doctrine, legal precedent since 1891 (which perpetuated racial segregation), violated the equal protection clause of the U.S. Constitution, and was overturned. As a result of that decision, segregation in all aspects of our societal interaction was deemed illegal, and public schools and public accommodations became racially integrated. Did that Court “interpret” existing law (the U.S. Constitution), or did they “make” new law? Both cases demonstrate the debate whether our jurists should interpret the Constitution as a “living document,” one which can accommodate changes in societal, technological and cultural norms, or should they “strictly” or literally construe the Constitution, without “legislating from the bench” (creating new law, which is the function of the legislative branches of government)? Where do you stand on the issue of the judiciary's role; that is, through which “lens” would you view the Constitution? In your reply, discuss the difference between a "strict constructionist" judge and an "activist" judge. Do you think (as one recent presidential primary candidate boldly asserted) that the federal judiciary should be answerable to Congress? Discuss.