At the end of 2008, the number of states allowing physician-assisted suicide grew from one to three. There was, however, a difference in the way the two states’ laws changed. In Washington, voters passed a referendum to legalize the practice. In Montana, a judge declared that the state constitution includes a right to physician-assisted suicide.

Also out West, California voters enacted a constitutional amendment to define marriage as the union of a man and a woman. That amendment came in response to a decision of that state’s highest court holding that the California constitution confers upon same-sex couples a right to have their unions recognized as marriages. The amendment itself was quickly challenged in court, with the state attorney general arguing that the voters had passed an unconstitutional constitutional amendment.

In both Montana and California, then, courts have intervened on issues of profound moral consequence upon which reasonable citizens of goodwill disagree, siding with one group of citizens against the other on the basis of a claim that the state constitution actually resolves the issue in dispute. In both states, in a pattern so familiar it sometimes passes without remark, the courts came down on the liberal (or “progressive”) side of that division, against the traditionalists. Indeed, the pattern is so familiar that the debate over judicial power is as stylized as the debates over the social issues with which it is so frequently entangled. Each side has slogans ready to hand.

Most traditionalists and a few progressives argue for judicial restraint in these cases. The traditionalists are wont to say that judicial policymaking (“legislating from the bench”) is an affront to democracy and to feel that they have been cheated out of a policy victory they won fairly. The progressives who ally with them on the judicial question are apt to say that judicial activism is divisive and even counterproductive.

The argument on the other side — from what we will call judicial activists, although they dislike the label — goes something like this: Constitutions typically have vaguely worded commitments for the government to respect such values as equality and (in the case of Montana) privacy. Since the courts are the chief interpreters of constitutions, it is up to them to give those “majestic generalities” (to use the phrase of liberal constitutional guru Ronald Dworkin) concrete meaning. It is their job to protect individual rights, even against democratic majorities, and even at the cost of controversy or divisiveness. Nor, they say, is such judicial action contrary to democracy, properly understood. Ronald George, chief justice of the California supreme court, wrote in his ruling on same-sex marriage that “the provisions of the California Constitution itself constitute the ultimate expression of the people’s will.”

While neither side’s lines are entirely satisfying and both contain bits of truth, the activists’ case is ultimately more misleading and far less satisfactory, serving as it does to obscure the real damage that judicial self-aggrandizement does to democracy, the rule of law, and justice.

It is true, for example, that the protection of individual rights is an important part of the work of courts. But that service follows from their primary task of upholding the law. The courts protect those rights that the law commands them to protect, such as the criminal defendant’s right, guaranteed by the Sixth Amendment, to confront his accusers. Even when courts uphold laws that do not themselves directly protect anyone’s rights, they are, when they are acting properly, maintaining the structure of lawfulness that is a prerequisite for the security of individual rights.

Considered in isolation, Chief Justice George’s comment is true and even wise. If the Supreme Court were to set aside a law that purported to abolish the right to confront one’s accusers, its decision could not reasonably be condemned as anti-democratic. The Court in that case would have vindicated the permanent, enduring will of the public, as expressed in the Constitution. There is a cliché that courts are counter-majoritarian institutions. They are, at least in a democracy, better viewed as instruments by which the public sees to it that its laws are applied — which sometimes requires them to act as a check on temporary majorities of the public.

Note, however, that this democratic defense of the judicial invalidation of laws works only if the public has indeed consented to the principle the court applied — only, that is, if the public or its representatives have actually incorporated that principle into law. The chief justice’s justification, that is, points toward an originalism at odds with his own decision. For it to strengthen his case, one of the following two things would have to be true: Californians who ratified their state constitution understood its guarantees of equal treatment of persons to entail same-sex marriage, or they understood themselves to be handing over to the courts the authority to order the state to recognize same-sex marriage in the name of equality. Both propositions are, literally, incredible.

So would be the equivalent propositions in the Montana case. Montana’s constitution declares that “the dignity of the human being is inviolable,” and Judge Dorothy McCarter relied on that, among other provisions, in making her ruling. “Death with dignity” is of course one of the catch-phrases of proponents of euthanasia, but opponents believe they are protecting human dignity (among other things) by resisting euthanasia’s spread. What “dignity” means is one of the principal matters at issue between the two camps, just as what “equality” means is in the marriage debate.

Judge McCarter tries to get a handle on dignity by invoking the infamous “mystery passage” from one of the U.S. Supreme Court’s most important abortion cases. In the process of reaffirming a constitutional right to abortion, the deciding three justices of the Court wrote that “at the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” They added that “beliefs about these matters” cannot be “formed under compulsion of the State” without doing violence to individuals’ dignity.

Assuming I have correctly described the Court’s argument — its writing on this occasion was quite murky — what truth it contains is not useful in guiding judicial actions. Liberty does indeed include the right to reach and hold one’s own views about existential matters. But it is equally obvious that liberty does not include the right to act on the particular beliefs one holds. If you doubt this, try telling the IRS that paying taxes does not comport with your personal concept of existence. In deciding that dignity entails a right to assisted suicide, Judge McCarter is making a policy choice — she is quite literally legislating from the bench.

People who support judicial activism frequently say that rights should not be “put up to a vote.” That formulation begs the question of what rights we actually have, which is usually a key point in dispute. But whether a government will recognize a right always depends on decisions — be it a vote of the people at the ballot box or a vote of a collection of judges in their chambers. There is no reason to expect judges to get decisions about such matters as same-sex marriage and euthanasia right more often than the citizenry as a whole. If you were designing a government from scratch, you would have no compelling reason for entrusting these decisions to judges in your constitution. More to the point, there is little evidence — from constitutional texts, for example, or the first 150 years or so of American governmental practice — to suggest that our governments were designed in that fashion. Judge McCarter, like the California justices, lacks both the expertise and the authority to decide these questions.

State constitutions are the source of state judges’ legitimate authority, as the U.S. Constitution is for federal judges. If those constitutions are not binding on them, they can hardly be said to bind anyone else. For judges to exceed their constitutional authority is thus to strike at the root of their own power — to call into question everyone else’s obligation to obey their rulings.

Note that this point would hold even if our governments were not democratic. A government that is democratic and that respects basic human rights is more just than one that does not have these characteristics, and its claim to obedience on the part of citizens, including judges, is stronger. But even a government that falls short in these respects may have a just claim on obedience. In a mostly just government, citizens, including judges, may be morally justified in disobeying a law if that law commands them to become actively complicit in committing injustice. In a radically unjust government, on the other hand, it may be morally permissible, even obligatory, for citizens to attempt to subvert it, and it might be appropriate for judges to ignore the law or make it up — for in that case a regime of law almost certainly would not exist.

Our governments are, in the scheme of things, fairly just and democratic, and rarely order anyone to commit injustices. The moral bar against law-breaking should accordingly be set high, for judges and everyone else. Higher, indeed, for judges than for most people, since their lawlessness typically threatens the rule of law more than ours does and the rule of law is itself a component of justice and a precondition for it.

Judicial activism is an affront both to the rule of law and to democracy, and these are the primary reasons to oppose it. They are not the only reasons. In some cases the policy imposed by judicial activism may be unwise or unjust, and its wrongness may supply additional legitimate motives for opposition. In some cases, such decisions may cause unnecessary social strife, militate against a healthy spirit of compromise, and otherwise harm the political culture. Our laws would deserve respect even if they were wrong in taking most policy decisions out of the hands of the courts, simply because they are our laws. But there is considerable reason to think that they got it right.