The question “should there be this law” and “must there be this law” is not a trivial game of semantics. It is foundational to whether we will be a republican styled polity or not. The constitution does not permit or require every law you like. Nor does it prohibit every law you hate. If you think courts must stipulate every law you like and prohibit every law you hate, then you are not suited for republican government. One may, for instance, believe strongly that states or even Congress should prohibit abortion, or redefine marriage, or provide universal healthcare, while acknowledging that the constitution doesn’t require them to do so. And questions of “should” are to be generally left to the elective branches for deliberation, not judges, in a republic.
Case in point:
Yesterday, the Supreme Court upheld Oklahoma’s method of execution. In the reasoning, Justice Breyer and Justice Scalia revealed a profound difference in how each understands the role of courts in politics and the interpretive philosophy to be used in deciding cases.
First, Justice Breyer’s view of the constitutionality of the death penalty has evolved, after 20 years of reviewing death penalty cases, such that he now believes that it is “highly likely” that the death penalty violates the 8th amendment’s prohibition against cruel and unusual punishment (he points to accumulating evidence of wrongful convictions). Herein is Breyer’s judicial philosophy. The meaning of the 8th amendment (of the constitution itself) evolves (though the words haven’t changed, nor have the precedents on this matter). And if they do evolve, who gets to decide what the ‘new’ meaning will be? Judges, not the people voiced through elected representatives in states or Congress.
Second, we have Scalia’s judicial philosophy: “Capital punishment presents moral questions that philosophers, theologians, and statesmen have grappled with for millennia. The Framers of our Constitution disagreed bitterly on the matter. For that reason, they handled it the same way they handled many other controversial issues: they left it to the People to decide. By arrogating to himself the power to overturn that decision, Justice Breyer does not just reject the death penalty, he rejects the Enlightenment.”