(Judicial Review) What Authority?: More Important than how Good or Bad an Issue is

14 Feb

Imagine tomorrow that President Obama declared that all laws that recognized same sex marriage any differently than heterosexual marriage were being rescinded and being re-written to include same sex marriage.  Imagine the public reaction, the news, and the public debates.  Now imagine 10 years ago if President Bush had declared any state law recognizing same sex marriage illegal in the country.

What scares me most about that reaction to either would be many people would be cheering.  The reason that concerns me so much is that the president would have zero authority to do that in either case, but a decent portion of the population wouldn’t care.

The problem is that we, as a society, very often are looking at issues in only the simplest light.  If we see a side of an issue to be good, we cheer for things pushing us that direction.  If we see it as bad, we do the opposite.  This doesn’t mean there is necessarily anything wrong with seeing an issue as black and white, but we can only do that to the extent that we can recognize other issues that emerge and one big one relates to the power of authority.

Now I don’t think President Obama would come out with that tomorrow (not that the power of the presidency doesn’t continue to get stretched way too much), but the same thing is happening with the courts.

Who Makes the Decisions

We live in democrat republic with the Constitution as the supreme law of the land.  What this means is that there are prescribed ways for laws to come about with very specific roles for different bodies.  That is something that most people acknowledge and celebrate, but what must always be remembered is that we only have a democratic republic so long as we hold the government responsible for following it. The more we accept other ways of changing the law, the less we really live in a constitutional republic.

The Courts and the lack of Democracy

While there are many areas we have seen the federal government exercising power that it does not have, no place is this more an issue than it has been with the courts.  A few key points must be remembered about the courts:

1.  They are the least democratically accountable.  There are elections in some states, but this isn’t true at the federal level.  Judges/justices are not easily removed and appointments to the Supreme Court are for a lifetime.

2.  They are supposed to interpret the law (written in legislatures) and apply it to actual cases.  This does not mean make the law.

3.  By using the word “unconstitutional” a judge can invalidate a state law and it only takes 5 votes from the Supreme Court to overturn laws in all 50 states and something that might have taken delicate compromise in the US Congress.

Take these points together and one thing becomes clear.  If we truly want to live in a democratic republic, it means that the judges can not be making rulings based on their own morality.  What they want the law to mean must be irreverent.  If we accept anything less than that then we are accepting that a non-democratic accountable branch of government is better at making laws than the democratic aspects of it.

The problem is that by accepting “A Living Constitution” the courts have been able to push whatever moral direction they feel is right.

Same Sex Marriage

The most recent example is all the court rulings overturning traditional/heterosexual marriage laws.  The direction the country is going in on that issue is clear (younger generations are overwhelming for equal status between the two), but that does not change two fairly simple facts:

1.  The laws against recognizing same sex marriage passed state legislatures/ballot initiatives in quite democratic ways.

2.  Almost no one who wrote/voted on any of the Constitutional amendments would have said it required equal protection for same sex marriage if asked (seriously, imagine asking Madison if the Bill of Rights would have required equal status).

I will fully grant that applying the Constitution is not always an easy thing, but this issue is pretty cut and dry on those two points.  Marriage law is not a new field and the fact that it has not been an issue until the past few years suggests that modern sentiments are the only things pushing a change.

None of this means that laws should not change, but the celebrations over rulings over-turning these laws are worse than bad.  We are literally celebrating because a branch of government that has no right to make laws is making a law we happen to like.  If we want change, the place to do it is through the legislatures, not through the courts.

It should be remembered that if the courts have the power to make laws we like, they also have the power to make laws we don’t.  Dred Scott was bad law too, but because of the Supreme Courts decision, slavery was instantly allowed in every United States territory.

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