-What's the point of having a constitutional democracy then? If the courts -are supposed to go no further than the current climate of opinion allows, -then you've given up what's good about them: in principle, they prevent the -majority from having final say-so over the rights of a minority.
This idea that courts should enforce the Constitution, especially on behalf of minorities, is a very recent one. Before the Civil War, the only major federal law that the Supreme Court struck down was the Missouri Compromise, arguing that Congress had no right to stop slaveowners from bringing slaves into new territories.
After the Civil War, the Supreme Court finally began striking down federal laws, but only in order to end Reconstruction and prevent the government from arresting Klan leaders. Until the 1930s, the major role of the Supreme Court was to strike down state and federal laws that sought to restrict the power of corporations.
I think our constitutional democracy would have been far better off without court review of legislation for most of our history.
Here's a test-- name any significant social advance that started with the Supreme Court rather than in an elected body. There are almost none.
Nathan Newman