Judge Diane Wood is on the short list of judicial picks to replace retiring Justice Souter. Wood has been a federal judge in the U.S. Court of Appeals for the 7th Circuit in Chicago since President Clinton appointed her to the position in 1995. Unfortunately, but not unexpectedly, she is also a judicial activist.

Prior to Franklin D. Roosevelt, the courts were still largely populated with originalists, who properly rendered legal interpretations based on the understanding of the Constitution’s “original intent.” FDR grossly exceeded the Constitutional limits placed on his office and that of the legislature. FDR’s meddling then opened the door for the judiciary to exceed its limitations; the Constitution now read in whatever way would satisfy the whims of the current political will.

In a 2005 article Judge Wood wrote for the New York University Law Review, she “argued that the U.S. Constitution ’survives’ the test of time through the ‘evolving’ interpretation of its text.” It’s difficult to track down what exactly Diane Wood’s judicial philosophy is. She appears to have more of a social philosophy than a judicial one, like other activist judges. Historical context or original intent is done away with in favor of personal preferences and social engineering.

With a judge like Wood, the Constitution is an amorphous document. If it is constantly ‘evolving’ with the times, then by definition, it cannot be the same thing it was before. Where it once had authority and meaning, it will no longer. Thomas Jefferson called the judiciary “the despotic branch”, and warned that the Constitution would become “a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please.”

Does that mean we can never change the Constitution? Of course not. The Founders understood the need for future Amendments, and that is why there is a process in place for amending the Constitution. Some make the false argument that without a ‘living’ constitution, slavery would still be allowed, and women wouldn’t be able to vote. This is nonsense as these issues were addressed in the 13^th, 14^th, 15^th and 19^th Amendments.

We have seen activists on the Supreme Court cite “national consensus” and “international law” as factors in their decisions. We have heard activist judges speak of “emanations” and “penumbras” in order to justify their unprincipled decisions. This is precisely what is wrong with the make-it-up-as-you-go-along liberal judges. Activism means having no protected rights and no limitations placed on the federal government. Rights will be whatever the political elites decide to give us and can be taken away at any time.

A non-living constitution is the only sensible one to have, because it binds people to a set of rules with a fixed meaning. As Jonah Goldberg writes, this is important because it “ensures that future generations will be protected from judges or politicians who’d like to rule arbitrarily…We all like to believe that we have some say about what this country will be like for our children and grandchildren. A ‘living Constitution’ denies us our voice in this regard because it basically holds that whatever decisions we make - including the 13th, 14th, and 15th Amendments - can be thrown out by any five dyspeptic justices on the Supreme Court. In other words, the justices who claim the Constitution is a wild card didn’t take their oath to uphold and defend the Constitution in good faith because they couldn’t know what they were swearing to.”

Redefining the word ‘activist’ as something applied to conservative judges and justices is another tactic that has been circulating lately.  A New York Times article said: “There is a misconception that so-called activist judges who ‘legislate from the bench’ are invariably liberal. In fact, conservative judges can be even more eager to overrule decisions made by elected officials.” Notice how they intentionally conflate issues of constitutionality with decisions made by elected officials. As though whatever laws elected officials make are automatically constitutional. It is not judicial activism to strike down laws because they violate the Constitution. Invalidating laws passed by Congress is perfectly acceptable and necessary when those laws are unconstitutional, which is the whole point of having the judicial branch.

Justice Antonin Scalia says of judicial activism, “As long as judges tinker with the Constitution to ‘do what the people want,’ instead of what the document actually commands, politicians who pick and confirm new federal judges will naturally want only those who agree with them politically.” Hence, we see the tainting of the courts with the nomination of judges who share identical politics with that of Obama. Politics would not matter if they did their job and simply interpreted the Constitution as intended and plainly written. But liberal judges do not, and that is why they are by definition activist, and not only wrong but dangerous for this country.