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February 4, 2005

As Americans Do, Not as They Vote

Rationalizations for judicial activism have progressed further than I'd been aware, as Michael proves in a comment my post about his previous enlistment of religious concepts of "unitive" relationships on behalf of same-sex marriage:

The legislature, in my opinion, only gives official sanction to changing standards; it very rarely acknowledges them outright on its own. That is because legislature, by their nature, think only of their continued careers. If they make unfavorable decisions, they will be fired. So yes, they are more directly accountable to the people but they are directly accountable to the majority opinion, not the majority practices.

That is why Goodridge was a correct decesion, in my mind. Many people may have held some ideal picture of what marriage was in their mind, but the justices found that, in practice, that wasn't the case. Marriage maybe should be a privilege, but the majority of people weren't treating it that way; marriage may be "about procreation" but the majority wasn't acting like it was. And emerging tolerance for the rights of homosexuals coupled with the "common law" practices of marriage being a undeniable right and separated from religion and procreation, these justices found that the ability to marry someone of the same sex was unfairly being denied gays by the legislative majority who weren't really practicing what they preached (enshrined in law).

By "design" those justices should have stepped in. And ultimately if the people decide that they made the wrong decision, they can always change the law because the constitution always trumps a judge.

It's quite a notion: that elected representatives' legislation is law of the public's opinion, while judicial edicts are law of the public's practices. And that a handful of unelected jurists-for-life are not only qualified to make such judgments, but so trustworthy in their decision-making that their power need not be balanced by anything less arduous than amendment to the Constitution.

Never mind the questionable desirability of transforming the amendment process into "we really mean it" legislation; it would seem that we've got it all wrong sending lawyers into courtrooms when what is really needed is a legion of statisticians. Perhaps the Census Bureau is located in the wrong branch of government.

Before we redraw our governmental org. chart, though, perhaps we'd best test the proposal with some other issue, say anti-discrimination laws. Suppose political correctness has restricted the public such that it must state opinions that it doesn't truly hold, therefore allowing do-gooders to push through laws against hiring or firing employees according to a particular criterion, such as sexual orientation. After a couple of years, an employer explicitly refuses to hire a well-qualified gay man. The law clamps down on the employer, and he brings suit, citing statistics that very few businesses actually have a proportionate number of homosexuals on their payrolls. Clearly, the courts, being mainly concerned with "majority practices," must strike down the anti-discrimination law, right?

I imagine Michael and those who share his views would respond "of course not," proving irrelevant the already erroneous libel that "the majority of people" aren't living up to the ideal of marriage as "about procreation." It's more accurate to characterize the reasoning of Goodridge as that various manipulations of the law — many of them performed by other judges — had changed the legal meaning of marriage.

The legal path to Goodridge was largely been followed in the name of protecting minorities against the morality of the majority, whether expressed as opinion or as practice. This stuff about "majority practices," as I said, is just post hoc rationalization of our deteriorating government structure.

Posted by Justin Katz at February 4, 2005 3:24 PM
Government
Comments

I'm glad you said something about this Justin. If you hadn't, I would have, even if it had been necessary to post it off-topic in another comment thread.

Posted by: smmtheory at February 4, 2005 3:32 PM

Justin,
You have miscontrued and misinterpretted my comments, bringing them into an absurd, absolutist light. I made mention of judges ruling on existing practices as an illustration that legislation has little to do with societal practices and more to do with society's opinions on how the country should work.

If you are allowed to criticize the judiciary and think that "unelected" judges, rather than represent the people in any real sense, instead rule upon their elitist whims, then why is it absurd and wrong for me to criticize the legislation and think that they, rather than represent the people in any real sense, instead vote upon whatever measure will keep them in their careers?

Neither group truly represents the will or opinion or practices of the people. But to believe that the legislation, because it is, to some extent, physically elected by people in a voting booth, somehow better represents our populus and protects its citizens than the judiciary is a naive opinion. Or the opinion of someone who is sitting comfortably with majority views.

I pray to God you never find yourself in a position in which you need an independent judiciary to protect your rights. I'm not saying that no decision made by a court was ever wrong and that no judge has ever overstepped his bounds, but I don't buy into this doom and gloom "deteriorating government structure" nonsense. The courts have been making decisions that people have said overstepped their jurisdiction for two centuries and the country hasn't collapsed.

Posted by: Michael at February 4, 2005 5:44 PM
But to believe that the legislation, because it is, to some extent, physically elected by people in a voting booth, somehow better represents our populus and protects its citizens than the judiciary is a naive opinion. Or the opinion of someone who is sitting comfortably with majority views.

Well, as a point of fact, the branch that better follows "majority views" by definition "better represents" the citizenry. I've at no point said that the judiciary isn't necessary or valuable, but that doesn't mean that it doesn't occasionally need to be reined in, even if it does take a couple of centuries for its abuse of power to become a threat requiring correction.

... why is it absurd and wrong for me to criticize the legislation and think that they, rather than represent the people in any real sense, instead vote upon whatever measure will keep them in their careers?

It is absurd, Michael, because the citizenry's power to "keep them in their careers" is the mechanism that ensures continued representation. It isn't perfect, by any means, and such things as campaign finance reform and districting require correction, as well. But why you believe judges will have purity of motive is beyond me.

I pray to God you never find yourself in a position in which you need an independent judiciary to protect your rights.

As I assess the current landscape of government, at all levels, it is the "independent judiciary" from which my rights require protection. That isn't to say that circumstances couldn't arise contrary to that general assessment, but we deal with more proximate threats first, and I hold our ability as citizens to determine the course of our government through democratic and representative means to be the premier civil right.

Posted by: Justin Katz at February 4, 2005 6:36 PM

Let's imagine a legislature decides to pass a law saying Catholics should not be permitted to use incense because it is a fire hazard. The people of the state decide, in a referendum, that the fire hazard concern should extend to candle. While it is clear that an anti-Catholic sentiment is lurking underneath these rules, that isn't articulated in the law or the referendum. So, the will of the people--as described by the legislature and the people--is that no incense is allowed and no candles are allowed in houses of worship.

Would you run to the courts, arguing it's a violation of the First Amendment or would you say, "You know, the people are right and whatever the majority wants--and whatever the cost--the courts should not try to change those values?"

Posted by: Mike at February 4, 2005 6:48 PM

Mike,

You're eliding the difference between the proper function of the courts — applying the law as written — and an improper function of the courts — changing (i.e., rewriting) the law. Of course Catholics would go to the courts, because the First Amendment explicitly states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

Posted by: Justin Katz at February 4, 2005 6:53 PM

Maybe you aren't familiar with the equal protection clause:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Interpretation of the "life, liberty, and property" includes the right to contract and the obtain the privileges of public benefits.

Just as Catholics could challenge a "fire safety" law, that incidentally effects Catholics, so too should people be able to challenge discriminatory laws under the Equal Protection Clause.

Posted by: Mike at February 4, 2005 7:00 PM

Actually, it's worth referencing the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof

Preventing incense and candles doesn't prohibit the exercise of religion, only incidental parts of the ritual. So, under a strict interpretation of the First Amendment, there would be no constitutional claim. Instead, it would require an "interpretation" of the Amendment before you claim can win. Sounds like judicial fiat over public policy to me.

Posted by: Mike at February 4, 2005 7:05 PM

Well, at the stubborn extremity, one can argue just about anything as "interpretation." In the case of Catholic candles, the meaning of "free exercise" has clearly been understood to include the incidentals of the Mass. In the case of marriage, judges are "interpreting" the law so as to change it as it has been understood in every instance of the word "marriage" in American law until very recently.

That same-sex marriage advocates are binding their activism to this whimsical handling of the law is both a strategic mistake and a hint of ulterior motives.

Posted by: Justin Katz at February 4, 2005 7:16 PM

Michael: “[T]o believe that the legislation, because it is, to some extent, physically elected by people in a voting booth, somehow better represents our populace and protects its citizens than the judiciary is a naive opinion. Or the opinion of someone who is sitting comfortably with majority views.”

Here we find the debate’s center: Democracy is a sham. Freedom is a naive illusion. We would all be much better off under laws set by benevolent oligarchs who see no difference between heterosexuality and homosexuality, reproduction be damned.

Enlightened despotism had its chance, Michael. It dominated most of the twentieth century. Communists in particular have always claimed to know the “real” will of the people, which was somehow never the same as how they voted.

You dismiss us as naďve, but the ignorance is yours. Your kind of thinking has a long and extraordinarily bloody history. No system of thought has ever killed so many people. Go try to count the number of corpses your intellectual predecessors left behind. The Black Book of Communism is a good start. Then come back and tell us how foolish we are for refusing to surrender our representative form of government.

Michael: “I pray to God you never find yourself in a position in which you need an independent judiciary to protect your rights.”

I would love for the judiciary to protect some of my rights. How about my right to live under a federal government of enumerated powers? How about freedom of association? How about the right to keep and bear arms? How about my right to live under laws written by my elected representatives?

The founders did not intend that the courts would ultimately defend the federal Constitution. The people were supposed to do that—watering the tree of liberty with the blood of tyrants and patriots.

Every generation faces tyranny in some new form. SSM is just one battle in a long, long war between those who would rule us and those who would have us rule ourselves.

Mike: “Maybe you aren't familiar with the equal protection clause:”

Citing the Equal Protection Clause puts you on dangerous ground, Mike. Only a liberal true-believer or complete charlatan could claim with a straight face: 1) The Equal Protection Clause is very important because it’s part of the Constitution. 2) It’s part of the Constitution because the people’s representatives voted on it. 3) Its meaning has nothing whatsoever to do with what those voters or their representatives believed that the Equal Protection Clause meant.

The hypothetical about religion and fire safety is the normal stuff of law, totally unrelated to judicial activism. Real cases like that pop up all the time, usually involving sects that want to engage in animal sacrifice or drug use.

Your hypo involves a legislature changing the law and wondering whether a court has the power to stop the change. That’s not judicial activism. Judicial activism occurs when a court announces a sudden change in a long-settled area of law.

Let’s say that again: When a court changes the law, you’ve got judicial activism. When a legislature changes the law and a court stops that change, you’ve got a functioning constitution.

Posted by: Ben Bateman at February 4, 2005 7:30 PM

Like Sully, Michael will say anything that sounds like it supports his single-minded obsession with sodomy, no matter how contradictory or rediculous.

I can't wait for your full-tilt fisk of him in the National Review, Justin.

PS: Ben Bateman, are you ever going to start your own blog, or will i have to keep following you around like some sort of groupie? ;)

Posted by: Marty at February 4, 2005 8:37 PM

Thanks Marty. I've reserved a URL for a blog (www.weshouldlive.com), but I don't have the time for it right now. I'm under contract to finish a legal reference book this summer. After that, my schedule should open up.

Posted by: Ben Bateman at February 4, 2005 8:59 PM

"When a court changes the law, you’ve got judicial activism."

So, school desegregation - judicial activism. Eliminating miscegination laws--judicial activism. Permitting adults to use contraception--judicial activism.

Posted by: mike at February 4, 2005 9:48 PM

Mike,

Well, yes, yes, and yes. Just because we like the outcome of an action doesn't make the action correct. As I understand it, the Supreme Court's rulings toward desegregation were only minimally effective, generating more heat than light, until the Civil Rights Act of 1964.

Desegregation was good, but we can't know how much damage the initial method of implementation did, including in racial discord as well as judicial mentality. I'm not making a claim, here, but just to illustrate what I mean, consider the possibility that the same mentality led to Roe v. Wade. If you're pro-abortion, then that's a good thing, but if you're not, then the perceived success of earlier judicial activism led to millions of dead human beings.

Similarly the anti-miscegenation cases. Imagine if people back then had known how directly the precedent would be asserted in support of same-sex marriage. From where you sit, it's an expedient method to your end, but that's not an objective assessment, and if a few decades find a SCOTUS ruling creating same-sex marriage used as precedent for something that even today's liberals would find appalling, the future's liberals will look back and say, "Hey, was that judicial activism?"

But even if we make allowances for judicial expediency in forcing change along this nation's inarguably longest fault-line — racial hostility — and call its rulings on that count good judicial activism, that doesn't mean that all judicial activism is thereby legitimated.

Posted by: Justin Katz at February 4, 2005 10:36 PM

But it does show that alleged "judicial activism" can have a social purpose. When entrenched prejudice and bias leads to stifled progress, than the courts taking a more active role in pushing social progress forward is worthwhile.

In the case of gay marriage--just like miscegination laws--courts have the opportunity to move society forward and beyond its prejudices. Very few minority groups would obtain rights if their futures were put up to a vote, that's why courts--who can operate above indulging the lowest common denomintor of prejudice and bias--are often in a better position to consider the equal protection needs of the minority.

Posted by: mike at February 4, 2005 11:23 PM

But I, and a vast majority of Americans, reject your view of "forward" and "prejudice." You're defining "progress" according to a view with which a great many Americans do not agree.

Ben's got it right. Your message is that democracy is all well and good, as long as it keeps pace with the world that you prefer. You distrust representative government, so you're lashing your preferred radical social redefinition with a civil rights movement that dealt with issues of such inappropriate comparison that "gay rights" activists ought to beware the moral vanity of the easy piggyback. We're not talking segregated schools or overwhelming barriers to success rooted in centuries of racism.

Judicial activism, whatever its history, has reached the point of pushing society sideways toward prejudices of a wholly more insidious nature. You're fortunate, I suppose, that so many judges happen to share your preferences, but at least be honest with yourself if you don't really give a damn whether our country discards the most basic civil right of representative government in its quest to ensure that no cultural distinction ever contributes to the discomfort of a single individual

Posted by: Justin Katz at February 4, 2005 11:43 PM

mike said,

In the case of gay marriage--just like miscegination laws--courts have the opportunity to move society forward and beyond its prejudices.

The distrust of democracy is bad enough, but what is amazing to me is that liberals cannot acknowledge the obvious arbitrariness of their position. mike takes as a given that a) it is obvious that society has prejudices that must be moved beyond, and b) that judges know the best way to accomplish this. "Tell us, O wise and wonderful judges, what are our prejudices, and how do we overcome them?" First of all, where did these judges obtain this insight and wisdom? Aside from the whole anti-democratic concept of picking anyone to make such decisions for us, how did judges get to be in this role? What training or experience do they have that gives them special insight into prejudice and social engineering (what else can be meant by "move beyond")? And how can you possibly deny that what you and Michael are describing is judicial tyranny? What is the difference between you and the Sunni supporters of Saddam who said he was a great and benevolent ruler (I mean, hey, a lot of them did OK under Saddam)? Before the whining and protestations of outrage begin: I mean in philosophical terms, not in practical terms - I realize that U.S. judges have not ordered anyone to be gassed or raped. A benevolent tyranny is still a tyranny (and has a very strong tendency to turn into a brutal tyranny).

Before Mark Miller chimes in with his usual objection to the depiction of our current judical milieu as tyrannical, let me note that Merriam-Webster online quotes Thomas Jefferson under the entry for tyranny:

"every form of tyranny over the mind of man"

If, as mike says, the judiciary is empowered to tell us the correct way to think (about race, about homosexuality, about abortion), how is that not a tyranny over the mind of man? To say nothing of their actual power to force people to abide by their preferred way of thinking.

As Ben said, this way of thinking has been around forever, in one form or another. The Middle East is beginning to see its moral bankruptcy - perhaps we can have some evangelists from Iraq tutor our Western liberals?

Posted by: Mike S. at February 5, 2005 10:27 AM

Justin said,

"in its quest to ensure that no cultural distinction ever contributes to the discomfort of a single individual"

Except, of course, that this is impossible, as Mike Adams' columns point out so hilariously. So we're trampling representative democracy just so a select few can feel comfortable.

Posted by: Mike S. at February 5, 2005 10:30 AM

The government ought to have no interest in cultural matters. It would have prevented alcohol prohibition.

But it does me no injury for my neighbor to say there are twenty gods or no God. It neither picks my pocket nor breaks my leg.
- Thomas Jefferson, Notes on Virginia, 1782

Suppose your god says gays can marry. What injury is done?

Posted by: M. Simon at February 5, 2005 11:51 AM

M. Simon, if you can find one that does, you just might have a good First Amendment case... good luck

Hey, can we legalize heroin and cocaine? Far as i can tell, it doesn't harm anyone else...

Posted by: Marty at February 5, 2005 1:05 PM

M. Simon, if you can find one that does, you just might have a good First Amendment case... good luck

Hey, can we legalize heroin and cocaine? Far as i can tell, it doesn't harm anyone else...

Actually, the Unitarians have a God that does.

And there is a serious argument for legalizing drugs.

Posted by: Michael at February 5, 2005 1:29 PM

Actually, the Unitarians have a God that does.

Lots of them actually, and lots of them that don't. And none of the above too. :P

And there is a serious argument for legalizing drugs.

Yes, but no one is takes them seriously.

Posted by: Marty at February 5, 2005 6:02 PM

"The government ought to have no interest in cultural matters."

Why not? And how do you define 'cultural matters'?

"Suppose your god says gays can marry. What injury is done?"

Gays get 'married' in MCC or Unitarian churches all the time. The question is, what interest does the state have in recognizing those unions?

Posted by: Mike S. at February 6, 2005 8:31 PM