Friday, June 26, 2015

Watching lions at a kill

There's the oft-quoted line about how power corrupts and absolute power corrupts absolutely.

Among other things, that makes power a test of character. Many people can't be trusted with power. Give them power, and they can't resist the temptation to abuse their authority.
The SCOTUS ruling on sodomite marriage raises several kinds of issues:

i) Under our Constitutional system of gov't, judges lack the authority to make social policy. That subverts representative democracy. That subverts the consent of the governed. To the extent that it's even the job of the state to make social policy, that's supposed to be a bottom-up exercise, not a top-down exercise. Citizens expressing their will through their elected representatives. It's far from perfect, but the alternative is a totalitarian regime. 

This decision represents an abuse of authority. A usurpation of authority. A judicial coup d'etat. Even if you think homosexuals ought to be free to marry, the decision is illegitimate. 

ii) Justice Kennedy rationalizes this action on the grounds that “While the Constitution contemplates that democracy is the appropriate process for change, individuals who are harmed need not await legislative action before asserting a fundamental right.”

But, of course, to say the court can and should bypass the democratic process inasmuch as homosexual marriage is a "fundamental right" is a viciously circular argument when the court first presumes to define homosexual marriage as a "fundamental right," then appeals to its own definition to authorize its subsequent action. Unless the court has the authority to define homosexual marriage as a fundamental right in the first place, it can't turn around and cite its stimulative definition to authorize itself to find a fundamental right of homosexual marriage in the Constitution. The reasoning is farcical. It's like a man who claims to be the sheriff because he deputized himself. 

iii) It's simply a naked power grab that subverts popular sovereignty. It's the duty of the executive and legislative branches, which are sworn to uphold the Constitution, to disregard this ruling. 

iv) Unless you think marriage is an arbitrary social construct, judges can't define marriage out of thin air. Marriage must have a basis in human design. A basis in the natural order. To the extent that judges define marriage, that must mirror human nature. 

If, on the other hand, you think marriage is an arbitrary social construct, then there's no limit to what can be legally or judicially defined as marriage. So the SCOTUS ruling either proves too much or too little.

So Kennedy's argument generates a dilemma: if marriage is grounded in nature, then homosexual marriage is wrong.

If, however, marriage is just a social construct, then anything goes.

v) Another issue is the proper scope of gov't. As Justice Brandeis noted, back in the 19C, there's "the right to be let alone."

All other things being equal, it's not the duty of gov't to impose itself on the public. It should only do so if there's a sufficient countervailing reason. We have far too many laws as it is. A thicket of laws that makes everyone a criminal. No one is safe. 

The more laws you have, the more that empowers the state. The more that threatens the populace. 

vi) Having fabricated a Constitutional right to homosexual marriage which has no trace in the text of the Constitution, this will come into conflict with actual, explicit Constitutional rights, like freedom of speech, religion, and association. 

vii) Judicial fiat is an expression of secular desperation. The secular elite thinks this life is all there is. That reduces conflict resolution to whoever has the most power. Getting power by any means. Using power by any means. 

If there is no afterlife, if there is no retribution for perpetrators who elude justice in this life, if there is no hope of restoration for lost opportunities in this life, then it becomes a mad scrabble to cut in line, to get the most you can cram into this life at the expense of others who get in your way. Run them over. You can't afford to have anyone slow you down, for from the time you were born you are running out of time. 

The clock is ticking, so you better be ruthless. Win at any cost, because you can't afford to lose. You won't get a second chance. You can't make up for lost time.

It's just like watching lions at a kill. The biggest, strongest lions get first dibs. Male lions in the prime of life. Smaller, weaker, immature, or aging lions fight over scraps. Whatever is left over after the dominant lions take the best of everything for themselves. 

That's the guiding philosophy behind abortion, infantile, and euthanasia. Don't be a burden! If you get in my way, I will kill you! 

They don't care about the future consequences of their actions, for in the long run we're all dead. They don't care about destroying the future, because they have no future beyond their own lifespan. Let the future be damned! Let the younger generation be damned! 

For the average secularist, it's now or never. That's why the high-minded arguments of the dissenting justices fall on deaf ears. Even though they win the argument on the merits, they lose the debate, since the trump card is secularism and physicalism. If there is no heaven and hell, all that matters is the here and now. This generation. As Richard Dawkins aptly said, "We are the lucky ones. We privileged few, who won the lottery of birth against all odds." 

This is why atheism isn't merely mistaken, but dangerously mistaken. Atheism reduces to the law of the jungle. 

viii) Secularists claim that religious reasons have no place in law and public policy. But that commits the genetic fallacy. The only relevant question is not whether a reason is religious, but whether it is true. 

ix) As John Roberts observes:

This Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise “neither force nor will but merely judgment” [Alexander Hamilton].

Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not. The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition.

Today, however, the Court takes the extraordinary step of ordering every State to license and recognize same-sex marriage. Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening.

The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent. The majority expressly disclaims judicial “caution” and omits even a pretense of humility, openly relying on its desire to remake society according to its own “new insight” into the “nature of injustice.” Ante, at 11, 23. As a result, the Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?

It can be tempting for judges to confuse our own preferences with the requirements of the law. But as this Court has been reminded throughout our history, the Constitution “is made for people of fundamentally differing views,” [Justice Holmes]. Accordingly, “courts are not concerned with the wisdom or policy of legislation,” [Justice Harlan]. The majority today neglects that restrained conception of the judicial role. It seizes for itself a question the Constitution leaves to the people, at a time when the people are engaged in a vibrant debate on that question. And it answers that question based not on neutral principles of constitutional law, but on its own “under- standing of what freedom is and must become.” Ante, at 19. I have no choice but to dissent.

Understand well what this dissent is about: It is not about whether, in my judgment, the institution of marriage should be changed to include same-sex couples. It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law. The Constitution leaves no doubt about the answer.

The Constitution itself says nothing about marriage, and the Framers thereby entrusted the States with “[t]he whole subject of the domestic relations of husband and wife.” Windsor, 570 U. S., at ___ (slip op., at 17) (quoting In re Burrus, 136 U. S. 586, 593–594 (1890)). There is no dispute that every State at the founding—and every State throughout our history until a dozen years ago—defined marriage in the traditional, biologically rooted way.

Allowing unelected federal judges to select which unenumerated rights rank as “fundamental”—and to strike down state laws on the basis of that determination—raises obvious concerns about the judicial role…when the “fixed rules which govern the interpretation of laws [are] abandoned, and the theoretical opinions of individuals are allowed to control” the Constitution’s meaning, “we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean.”

…the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws.

One immediate question invited by the majority’s position is whether States may retain the definition of marriage as a union of two people…Although the majority randomly inserts the adjective “two” in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not. Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world. If the majority is willing to take the big leap, it is hard to see how it can say no to the shorter one. It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage.

A Justice’s commission does not confer any special moral, philosophical, or social insight sufficient to justify imposing those perceptions on fellow citizens under the pretense of “due process.”…The Fourteenth Amendment does not enact John Stuart Mill’s On Liberty any more than it enacts Herbert Spencer’s Social Statics…And it certainly does not enact any one concept of marriage.

Those who founded our country would not recognize the majority’s conception of the judicial role. They after all risked their lives and fortunes for the precious right to govern themselves. They would never have imagined yielding that right on a question of social policy to unaccountable and unelected judges. 

The Court’s accumulation of power does not occur in a vacuum. It comes at the expense of the people. And they know it…When decisions are reached through democratic means, some people will inevitably be disappointed with the results. But those whose views do not prevail at least know that they have had their say, and accordingly are—in the tradition of our political culture—reconciled to the result of a fair and honest debate. In addition, they can gear up to raise the issue later, hoping to persuade enough on the winning side to think again. “That is exactly how our system of government is supposed to work.”

Federal courts are blunt instruments when it comes to creating rights. They have constitutional power only to resolve concrete cases or controversies; they do not have the flexibility of legislatures to address concerns of parties not before the court or to anticipate problems that may arise from the exercise of a new right. Today’s decision, for example, creates serious questions about religious liberty. Many good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is—unlike the right imagined by the majority— actually spelled out in the Constitution. Amdt. 1.

Respect for sincere religious conviction has led voters and legislators in every State that has adopted same-sex marriage democratically to include accommodations for religious practice. The majority’s decision imposing same- sex marriage cannot, of course, create any such accommodations. The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage. Ante, at 27. The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses.

As Antonin Scalia observes:

Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact— and the furthest extension one can even imagine—of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected commit- tee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.

This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ “reasoned judgment.” A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.

The Federal Judiciary is hardly a cross-section of America. Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers, who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single South- westerner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans19), or even a Protestant of any denomination…to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.

They are certain that the People ratified the Fourteenth Amendment to bestow on them the power to remove questions from the democratic process when that is called for by their “reasoned judgment.”

The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.

Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before a fall. The Judiciary is the “least dangerous” of the federal branches because it has “neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm” and the States, “even for the efficacy of its judgments.” [Alexander Hamilton].

As Justice Thomas observes:

The Court’s decision today is at odds not only with the Constitution, but with the principles upon which our Nation was built. Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits. The Framers created our Constitution to preserve that understanding of liberty. Yet the majority invokes our Constitution in the name of a “liberty” that the Framers would not have recognized, to the detriment of the liberty they sought to protect. Along the way, it rejects the idea—captured in our Declaration of Independence—that human dignity is innate and suggests instead that it comes from the Government. This distortion of our Constitution not only ignores the text, it inverts the relationship between the individual and the state in our Republic.

By straying from the text of the Constitution, substantive due process exalts judges at the expense of the People from whom they derive their authority.

The founding-era idea of civil liberty as natural liberty constrained by human law necessarily involved only those freedoms that existed outside of government…As one later commentator observed, “[L]iberty in the eighteenth century was thought of much more in relation to ‘negative liberty’; that is, freedom from, not freedom to, freedom from a number of social and political evils, including arbitrary government power.”

As a philosophical matter, liberty is only freedom from governmental action, not an entitlement to governmental benefits. And as a constitutional matter, it is likely even narrower than that, encompassing only freedom from physical restraint and imprisonment.

Aside from undermining the political processes that protect our liberty, the majority’s decision threatens the religious liberty our Nation has long sought to protect.

Our Constitution—like the Declaration of Independence before it—was predicated on a simple truth: One’s liberty, not to mention one’s dignity, was something to be shielded from—not provided by—the State. Today’s decision casts that truth aside.

As Justice Alito observes:

The Members of this Court have the authority and the responsibility to interpret and apply the Constitution. Thus, if the Constitution contained a provision guaranteeing the right to marry a person of the same sex, it would be our duty to enforce that right. But the Constitution simply does not speak to the is- sue of same-sex marriage. In our system of government, ultimate sovereignty rests with the people, and the people have the right to control their own destiny. Any change on a question so fundamental should be made by the people through their elected officials.

Today’s decision will also have a fundamental effect on this Court and its ability to uphold the rule of law. If a bare majority of Justices can invent a new right and impose that right on the rest of the country, the only real limit on what future majorities will be able to do is their own sense of what those with political power and cultural influence are willing to tolerate. Even enthusiastic sup- porters of same-sex marriage should worry about the scope of the power that today’s majority claims…all Americans, whatever their thinking on that issue, should worry about what the majority’s claim of power portends.


  1. Fine work, Steve. Truly remarkable. You are without question, in my mind, the man for the job.

    "Although the majority randomly inserts the adjective “two” in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not."

    It also inserts "people" in the same way. How long until "beings" replace "people"? Sounds impossible, I know. But, how impossible would this decision have seemed in the 50's?

    The Bork hearings were in many ways a watershed moment. Or, as Tom Goldstein put it, "The nomination changed everything, maybe forever".

  2. Always good to see you at your best, Steve.

  3. The Emperor has no clothes.

  4. I'm sure that Kennedy and Sotomayor will have no problem receiving communion from the One True Church after this decision. Rome is worse than useless, it is complicit in our society's decline and rebellion against God's law.