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.

This ruling wasn't quite as bad as Roe, in that while a majority still support some restrictions on abortion, there has been a movement in public opinion on same-sex marriage in recent years. It was becoming legal in more and more states (though often, as was the case here, not by a popular vote, but by judicial fiat). Such a trend was probably inevitable, and young people are much more favorable to the idea than older ones (though they may change their minds as they age, as people do on many other issues). It was creating a problem in terms of "full faith and credit" between states that recognized it and those that did not.

But the Founders foresaw this sort of thing. That is why they put a provision into the founding document to deal with it. The proper way to address the issue, in terms of making  SSM universal, was not to manufacture a new right from the Constitution, but rather to amend it. But that is something that hasn't happened in a long time, because it is (rightly) difficult to do, and the Congress, the courts and the public have become too impatient, and prefer to sidestep it (which in fact has happened in, among other things, the federal War on Drugs, which somehow didn't seem to require an amendment even though the prohibition of alcohol did).

The Constitution was meant to be the bedrock of laws, and the laws were to be enacted by the Congress, and signed by the president, not ignored or superseded by the president, or rewritten by the chief justice, to satisfy their own preferences, or those of others, even a majority. We are neither a tyranny of men, or that of a majority. As has often been told, when Benjamin Franklin came out of the Constitutional Convention, a woman asked him, "Mr. Franklin, what have you given us?" His reply: "A republic, madam, if you can keep it."

When we ignore and side step the Constitutional and legal process to achieve a desired end, the bedrock starts to turn to sand. When the laws are ignored by those who have sworn to uphold or review them, the rule of law itself disintegrates. When the public doesn't care, or understand the role of the branches of government, but votes anyway for people who tell them they'll just give them stuff they like, that is how republics are lost.