In 1973, the U. S. Supreme Court declared abortion to be a constitutional right, even as the justices had to admit that no such right was even mentioned in the U. S. Constitution. Just a few years before this, the justices had found the constitutional "right to privacy" on the issue of contraception.

Fast forward thirty years, and the nation's high court would strike down laws against sodomy and homosexual behavior, declaring that such laws violate the U. S. Constitution. The nation's courts have invented liberties and interpreted the Constitution according to their own political predilections.

Thus, when Judge Alito spoke of his own commitment to restraint and "the limited role that the courts play in our constitutional system," he was affirming his more limited and restrained understanding of the judicial role. Just months earlier, John Roberts, now Chief Justice of the U. S. Supreme Court, made a similar point in referring to the role of judges as "umpires" rather than players in the context of politics.

Justice Antonin Scalia once asked: "What secret knowledge, one must wonder, is breathed into lawyers when they become justices of this Court, that enables them to discern that a practice which the text of the Constitution does not clearly proscribe, and which our people have regarded as constitutional for 200 years is in fact unconstitutional?" Reviewing the activist decisions handed down by his own colleagues, Scalia argued that the Supreme Court "is busy designing a Constitution for a country I do not recognize."Once again, this affirms why Americans should demand judicial nominees who will understand the limited role of the courts and will resist siren calls to legislate and press social agendas from the bench. Even as legal theorists and other justices refer to "evolving standards of decency" and the needs of the Constitution to "grow" with the nation, justices must understand that they are to interpret the Constitution as it is, not as they would wish for it to be.

After decades of liberal decisions that have served as landmarks for what they see as social progress, many now demand "moderate" judges as nominees to the nation's highest court. Some senators have insisted that they will accept and confirm only "mainstream" judges who will accept decisions such as Roe v. Wade and Lawrence v. Texas as "settled law" or "superprecedents" that are beyond further judicial review.

Justice Scalia wonders what such senators are thinking. "Now the Senate is looking for moderate judges, mainstream judges. What in the world is a moderate interpretation of a constitutional text? Halfway between what it says and what we'd like it to say?"

The actual text of the Constitution must control judicial interpretation. Justices who seek to justify their judicial activism by supposedly discovering a "penumbra" of hidden rights within the Constitution do this nation a disservice and threaten the delicate balance of power that the founders of this nation saw as indispensable to the nation's health and individual liberty.