Rule of law vs. rule of judges…

Greetings loyal minions. Your Maximum Leader has been reading over the posts on this site and will try to wrap a whole bunch of issues into one big post. This process began when your Maximum Leader read over the Foreign Minister’s last post. One can certainly understand how reading the court sources being bandied about by the Minister of Agriculture and your Maximum Leader can do little to inspire confidence. Then your Maximum Leader had a little serendipitous moment. An underlying, but common, theme in many of the recent posts on this space (and over on the Poet Laureate’s site) have to do with the problem your Maximum Leader will call the problem of the rule of law versus the rule of judges.

The Minister of Agriculture has mentioned a few times in the ongoing discussion on guns that he respects the rule of law. Indeed. Your Maximum Leader (until he rides the wave of power and establishes the MWO) also respects the rule of law. Respecting the rule of law is a good Anglo-American tradition. But we have in the United States a problem. It is not directly about the rule of law, but the rule of judges.

Some of you may know that Supreme Court Justice Clarence Thomas has a sign in his office which reads: vv Please do not emanate into the penumbra.vvp This tongue-in-cheek sign is meant to show Justice Thomasvv commitment to interpreting the Constitution according to the foundersvv intent. (Justice Thomas, and others, are dismayed by the fact that recent court decision have found there are new individual rights that vv emanate from the penumbravvp of enumerated rights in the Constitution.) This is the jumping off point of my discussion. At what point have we moved from the rule of law to the rule of judges.

Allow me to begin by saying that I have no problem with judges clarifying points of law, or taking a decision between two differing but equally plausible interpretations of a law. What I find I have more and more difficulty with are courts deciding questions that historically have been left to legislatures. Our on-going gay marriage discussion is one such question that is looking like the courts (not the legislatures) will decide.

Not too long ago the Poet Laureate asked for my opinions on the legislative vs. judicial implications of the gay marriage decision by the Massachusetts Supreme Court. Well here it is. I believe that gay marriage is so very contentious not only because of the uncomfortable confluence of religious and political spheres but because the major decisions are all being made by courts.

Now a pox should fall on all vv housesvvp in this political debate. Liberals, Conservatives, Democrats, Republicans all are using the courts to win political battles. But these battles shouldnvvt be fought in the courts. They should be fought in the state and federal legislatures. Issues involving such momentous (or potentially momentous) societal changes should not be determined in a court, but in a democratically elected deliberative body. I firmly believe that the gay marriage debate needs to be happening in state legislatures or in the Congress. (And gay marriage is only one debate that should be solved outside of courts, it just happens to be the topical one now.)

Now before the cat-calls of vv well you are only saying that because Republicans who favour your position control the Congress,vvp are levied let me say that I donvvt really care who controls the Congress. My opinion would stay much the same. We have allowed our legislatures to become lazy. Seats in Congress arenvvt always contested. Incumbents avoid decision taking because it gives them a record that someone could use against them. And ultimately, we as voters (you are a voter arenvvt you?) bear the responsibility. We donvvt demand that the hard questions be solved in the logical place. This permissiveness allows the courts to step right in and answer the questions. But this is not healthy for a democratic society because so few people are actually involved in the decision-making process. When a court decision is handed down, the question is answered and there is not much anyone can do about it, except wait to see how it turns out on appeal.

This cycle of waiting for the courts to rule on the questions of the day doesnvvt promote closure (so to speak) on the questions of the day. It leaves them open-ended. They are open ended because vv the peoplevvp didnvvt ever really decide anything. And frankly, vv the peoplevvp werenvvt even consulted in taking a decision. Furthermore waiting for courts to decide weighty questions causes the appointment of judges to the bench to become a wretched horror of a process that no decent person (of any political stripe) should have to endure. Why? Because judges take the flak for the political hacks in settling the questions of the day.

Let us take the question of gay marriage. Court after court, it appears, will be soon deciding if gay people can get their marriagevvs recognized by the civil authorities. The very fact that courts are taking this decision, I believe, polarizes the population. Currently, a majority of people oppose extending the defined institution of marriage to include same sex couples. Regardless of which polls you read, the majority still exists. (It only seems to vary in size.) If that majority feels that their voice wasnvvt heard by the courts, they will become resentful of the courtsvv decision. And that could very likely lead to a public backlash against gays. Currently a majority of Americans (myself included vv in case you were guessing) agree with recent decisions of various courts (including the US Supreme Court) holding that homosexual behaviour is not illegal. This is a good decision, but frankly one that should have been avoided by legislatures repealing the problematic laws. In the case of gay marriage the courtsvv decisions are polarizing the public and could cause the general feeling of good-will towards gays to evaporate.

If, however, there were to be a serious debate in Congress (or in state legislatures) about the status of gay marriage and an up or down vote were to be taken; there would be much less or even no backlash. Why? Because Americans believe in fair play, and when we lose a fair fight we admit it. And once you gain a right in our system, it is pretty damned hard to lose it. (But that sometimes happens when people are not vigilant.)

But, alas, our elected politicians do not do us a great service by being more concerned about re-election than really making lawsvѬ This brings me to two other points I wanted to get in (and now is about as good as any).

Re: Slippery-slope arguments. We have all read a lot about slippery slope arguments recently. I have even made some. But the key to understanding the slippery-slope is subtlety. The proponents of gay marriage (for instance) are not really trying to eliminate all barriers to marriage (as some opponents of gay marriage claim). The vast majority of them are really only looking to right what they perceive to be a wrong. The slippery-slope is not an actual conspiracy to do more than someone (or group) claims. The slippery-slope is a result of unintended, or denied, consequences.

As pertains to the gay marriage debate, let us take a few examples (provided to us by many different sources, but the Volokh Conspiracy happens to list a number of them all together in one easily linkable group) of arguments made while the Equal Rights Amendment was being debated.

The first:
“What foes of ERA contend were valid arguments and what advocates claim were emotional scare tactics also seemed to sway sentiment among the women against the amendment [in North Carolina]. Opponents, for example, suggested passage of ERA would mean abortion on demand, legalization of homosexual marriages, sex-integrated prisons and reform schools — all claims that were hotly denied by ERA supporters.” U.S. News & World Report, Apr. 28, 1975

The second:
“The vote in Virginia [against the ERA] came after proponents argued on behalf of civil rights for women and opponents trotted out the old canards about homosexual marriages and unisex restrooms . . . .” Wash. Post, Feb. 19, 1982 (column by Judy Mann).

I could list more, but just read the links if you like. Here and here.

What make these arguments so interesting to me is that they clearly illustrate one point I have been making during this whole discussion. If you remove the barrier prohibiting gay marriage, how will you stop polygamous marriages, boy/man marriages, or even incestuous marriages? There is no logical reason to do so. While I am not claiming that the intelligent advocates of gay marriage (the Poet Laureate, the Minister of Agriculture, and Andrew Sullivan among others) are really secretly desirous of polygamous, child/adult, or incestuous marriage; I am saying that once you go down this road you have very little reason to stop at some other arbitrary point along it.

Re: Federalism, DOMA, and Full Faith and Credit Clause.

The Poet Laureate (aka the Big Hominid) has a long post about these items. In it he asks some questionsvѬ Here is one:

vv If the FFCC is “supreme,” and “prevents” states from enjoying the full benefits of the federalist ideal, how did DOMA get on the books?vvp

Easy, Congress passed it. Just because Congress passes a law doesnvvt mean it is a good law. Indeed, the speed with which the DOMA was passed precludes it from being good law in my book. (Ditto the Patriot Act.) And DOMA, as I understand it, is a little more limited than some people think. Regardless, I believe it would run afoul of the FFCC.

Now, it is only because I grow very tired now that I donvvt feel I am going to do a good job summarizing my positions on the Poet Laureatevvs post, but I will give it the ole college try.

As I said earlier, the whole matter of a Constitutional Amendment comes about (I think) because the courts are making the decisions here. And ultimately, the only way you can be sure your side wins a legal argument of this magnitude is to make sure the ultimate law of the land supports your side. Both sides feel they have to enshrine their positions in the Constitution. But neither side will be able to do that. And frankly, if they did it wouldnvvt be pretty. The Amendment the Hominid didnvvt reference was the 18th. That was the Prohibition Amendment. (The 18th was eventually repealed by the 21st Amendment.) One generally doesnvvt do well when you try to enshrine a particular moral position in the Constitution. And frankly, one doesnvvt do well when you start tampering with the Constitution. Furthermore, I think all proposed (or conjectural) amendments concerning gay marriage should be opposed by all sensible citizens.

Of course, the Congress could invoke the little used and even littler known Article III, Section 2, Paragraph 2 exclusion rule. For those of you who may not know this it goes:

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

This section of the Constitution has been interpreted to mean that Congress can restrict the type of case that could be appealed to the Supreme Court. (And I hope it shows that the legislative branch should have a check against the power of the judicial.) It is possible that Congress could pass a law indicating that the Supreme Court would not be able to hear cases involving the FFCC and gay marriage. But the downside to that would be lots of different decisions by lots of different courts with no overarching precedent. Congress then, might be free to pass whatever law they might to clarify their position in this matter.

The Hominid also revisits his musing where he reflects on why marriage (which he claims to be a civil right of a greater magnitude than voting) is not enshrined in the Constitution, but only sanctioned at a state or local level. This is an interesting point that I would like to comment upon. First, in a democratic republic, I believe the civil right of voting does supercede the civil right to marriage. But that point is really academic. The heart of the question goes straight to the heart of the question of federalism. Why are certain institutions sanctioned at a state/local level? Because, as Tip OvvNeill once put it, all politics are local. The founders did believe in separation of powers between the Federal and State governments as much as they believed in the separation of powers within the Federal government. Neighbours getting together on county councils or in state legislatures were much more effective at judging the standards and will of the community than were remote representatives in Washington DC. Most laws in this nation are state and local laws. Individuals have more influence over (but paradoxically less interest in) local politics than national politics. Local laws are supposed to be more responsive to the will of the people than national laws. And going even further to the heart of the matter, according to the Constitution, rights not enumerated in that document are understood to be reserved to the people (Amendments 9 & 10.) And the intent was for the states (or local governments) to spell out those rights as it was required.

Anyway. This post has rambled on long enough. I am tired and shall retire now.

Carry on.

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