Posted by Anthony on June 26, 2008
Already I’m seeing and hearing reactions to today’s Supreme Court tossing of the DC gun ban saying that this is conservative judicial activism. As I understand it (I haven’t read the decisions myself), even the dissent is making that accusation.
I don’t agree, personally. I believe that the ruling was constructionist (which makes me wonder why Kennedy went with it) but let’s assume it was judicial activism. Is this not then an illustration about the foolishness of a judicial system that is allowed to deviate at will from the words on the paper? There is no right to an abortion listed in the Constitution, ala Roe vs. Wade. There is no language in the Constitution or even the state constitutions ensuring that gays have as much right to ‘marriage’ as others. And yet, courts have found that they are. This is the bed the liberals made: now lie in it.
As far as I’m concerned, if states want to decide to legalize abortion, or legalize gay marriage, so long as it is done via the legislative branch, which is supposed to represent the will of the people, I will not be happy but at least I can say that democracy is preserved and that there is at least hope that we can yet persuade people to another position. But on the current model, people are essentially disenfranchised. In order to overturn a ruling, in particular the SC ruling, you need to A. get a justice in there with the views you like and B. Get a case to come before them that matches the thing you want to accomplish.
Not easy to do. It can take a generation to pull it off, if not a century. Seems like a bad way to run a country, to me. If this is in fact an instance of judicial activism from the conservative side, then let this be a warning and a call to action to the liberals: it’s time to stop using the courts to push our agendas and trust the people and the legislative processes.
Posted by Anthony on October 1, 2007
Today the Supreme Court opened their session and I began reflecting a little on the function that this court provides for our country. As I am in constant contention with non-Christians, secular humanists and atheists in particular, I was also thinking a little about arguments that I am often engaged in with them in relation to the Constitution. Politically, I would consider myself a ‘Constitutionalist-Libertarian’ which basically means that I don’t think the government should have much power over the private individual and that the power they do have should be precisely laid out and constrained by the Constitution. In other words, if you want to limit someone’s individual rights, change the law, and if the Constitution won’t allow that, change the Constitution.
I think there are lots of folks who agree with me on that though they may not adopt my label. I raise this all here to introduce what I believe is a core difference in the way people view the world. Let me give two examples to try to make my premise plain. Consider, first of all, the Supreme Court case Roe vs. Wade. In this decision, building on a couple of precedents, the justices somehow found a constitutional right to privacy and managed to extend this right to include abortion. But does the Constitution really contain language that would support this? No, it doesn’t.
Now, consider the misguided but successful efforts of those who brought about the 18th Amendment in 1919: Prohibition. Previously, there had been no language in the Constitution to restrict alcohol in the way the 18th Amendment called for. These folks went through the extraordinary effort to pass an amendment and change that.
This is illustrative of the difference between attitudes about the rule of law. Those who passed the 18th Amendment actually cared for the rule of law. Those who pushed through Roe vs Wade did not. If it had been secular humanists that had wanted to outlaw alcohol, they wouldn’t have bothered to build popular support for the measure and then craft language that deals with it explicitly, they would instead have manipulated precedent and used the courts- bypassing popular support altogether- to get their way.
It is probably not surprising that the approach to the Constitution as a ‘living document’ followed the trend to dismiss the Christian Scriptures and argue that “anything can be proved from the Bible.” This objection to the Scriptures appears all over the place but the truth seems to be these days that anything can be proved from the Constitution, too. The rejection of the Scriptures, I contend, is only representative of a general disdain for the notion that one might really be constrained by the meaning of words on a page. Probably, post-modernism is itself born from the same root.
The difference between the approaches can be seen again when one looks at how the amendment was finally countered. Insanely, using a method that would never be considered now, our forefathers passed another amendment (the 21st) to repeal the former one. Again, if they had wanted to act as moderns do, they would have instead tried to have the amendment thrown out as ‘unconstitutional.’
But of course, if you institute policies as ‘constitutional’ based on judicial declaration and find them ‘unconstitutional’ later on again by judicial declaration- when in fact nothing within the language of the Constitution ever changed, all you’ve succeeded in doing is reducing interpretation to a subjective operation performed by this justice or that one. The language hardly matters at all. This is precisely why skeptics today can say that you can make the Bible say anything: because skeptics don’t constrain themselves to the written language. If they did, one could easily see that on an issue like slavery (for example), it is not the case that the Bible supports it but rather people wanted to act that way but the language couldn’t support it, and eventually plain reason won out.
The danger here is immense. If you depend on the Supreme Court to institute your policies you disenfranchise yourself to a high degree. The extent of your ability on an individual level to enact or de-enact ‘the law of the land’ is restricted to your vote in the Presidential election, since it is the President who appoints new justices when there are openings. If you have a lot of money, you can of course, pour a bunch of it into a special interest group who will push a carefully chosen trial up to the Supreme Court level, so in this way you can ‘effect’ change. I think its safe to say that for most of us, we are effectively dis-enfranchised.
What makes this so ironic is hearing secularists try to argue from the language of the constitution or from ‘polls’… they are deeply afraid that the Supreme Court could end up being much more conservative: As they should, since if the Supreme Court is their sole means of changing policy, a conservative court could single-handedly change everything they’d ‘worked’ for. On top of that irony comes another irony: a conservative court is actually more likely to stick to the words on the page, which means that the people again have a stronger position to create change since now electing their representatives and senators becomes important. But of course, that is no help for them, since the whole reason why they went down the road to judicial fiat in the first place was because they didn’t have any hope in actualizing their views legislatively.
There is nothing that makes me smile more than having an argument about the language of the Constitution with a secular humanist who would treat it as a ‘living document,’ anyway. But the implications for our society are serious. Because of this approach, the question of abortion was decided by 9 men instead of the hundreds of millions of people living in the country that were affected by the decision and had their own views. On this, the secular humanists are pleased, because of course they support the policy. But what happens when the court decides something that they don’t approve of? They will find themselves harmed by their own precedence.
And as a Christian trying to reason with them from the Scriptures, one can’t help but think that this attitude stands in the way of their salvation, too, for the simple reason that the meaning of passages in the Christian Scriptures are so subjective to them that they feel they could never understand them, let alone hope to trust them.
