How Republics Die
Eight hundred years and 11 days after the stamping of the Magna Carta, it's been an appalling week at the Supreme Court for the Constitution and the rule of law. Today's ruling is, in a sense, the Roe v. Wade of our generation. And I would think that even if I were gay and wanted to marry.
As I noted on Twitter yesterday, it is entirely possible to like the outcome of a court ruling (or legislation) while being appalled at the process by which it was achieved. For instance, one can be both pro-choice and still believe (as in fact Ruth Bader Ginsburg does) that Roe v. Wade was wrongly decided.
But too many people (including, apparently and sadly, many of the justices themselves, perhaps even including the chief justice) think that the purpose of the Supreme Court is to give them things they like, like subsidies for health care, or the right to marry someone of the same sex. They care only about the results, and are utterly indifferent to the process (as we saw with the way the PPACA was passed). They believe that the ends, if sufficiently desirable, always justify the means.
But the means matter.
If, as Chief Justice Roberts implied yesterday, ambiguous laws can be changed by judges per their divination of legislative intent, then there is no law except what the judges think it is. (I would note that in fact his reasoning was fundamentally flawed by his statement that it was Congress's goal to simply "improve insurance markets." I think their intent was to increase their control over our health providers, and ultimately lead us down a path to single payer. But neither of us knows.) This was not judicial activism -- it was judicial nihilism.
Similarly, if the Fourteenth Amendment contains a hitherto unknown right to marry someone of the same sex, then it contains multitudes of rights that will be discovered in the future by more "enlightened" judges.
On Twitter, someone posted a picture of an inscription from the southeast portico of the Jefferson Memorial to justify the court's ruling:
I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as a civilized society to remain ever under the regimen of their barbarous ancestors.
But that is not an argument for a "living Constitution" that contains heretofore undiscovered "rights." By "changes," he meant that Constitutions must occasionally be amended, not reinterpreted.