"If men were angels," James Madison famously said, "no government would be necessary." But men are not angels--and so government is necessary. Mr. Madison and his colleagues did not take Utopia as their starting point; rather, they took human beings as we are and human nature as it is. They believed ambition had to be made to counteract ambition.
Scholars of American government have pointed out the Founders were determined to build a system of government that would succeed because of our imperfection, not in spite of them. This was the central insight, and the great governing genius, of America's Founders.
And in all of this the Founders believed the role of the judiciary was vital--but also modest. They envisioned judges as impartial umpires, charged with guarding the sanctity of the Constitution, not legislators.
In Federalist No. 78, Alexander Hamilton described the judiciary as the branch of government that is "least dangerous" to political rights. Because it was to have "no influence over either the sword or the purse," the judiciary was "beyond comparison the weakest of the three departments of power." As a result, Hamilton told us, "liberty can have nothing to fear from the judiciary alone."
In the 1770s we saw, within just a few hundred miles of here, the greatest assemblage of political philosophers since ancient Athens. Yet today the counsel of Madison and Hamilton and the other Founders too often goes unheeded, at least in influential law schools and among too many of our judges. And this failure has led to increasing politicization of the judiciary and increased activism on the part of many of its members.
America's 43rd president believes, as you do, that judges should base their opinions on strictly and faithfully interpreting the text of a document that is reliable and remarkable: the United States Constitution. William Gladstone called it "the greatest work ever struck off at a given time by the brain and purpose of man."
Critics of constitutionalism say it is resistant to social change. But if people want to enact or repeal certain laws, they can do so by persuading their fellow citizens on the merits through legislation and constitutional amendments. This makes eminent good sense--and it allows for enormous adaptability.
This last paragraph is the key counterpoint to those who pine after "a living, breathing Constitution". If the American people see fit to change the Constitution the founders left them a way. The document can be amended as it has been, infrequently, (thankfully) over time. It's a difficult process because the Founders meant it to be. [Wonder why we've been going strong for 230 years and the French are on their fifth republic?] Five unelected judges should not be able to change the Constitution.