Summary: The reactions to the Court’s ruling on Obamacare and same sex marriage divide on predictable partisan grounds, as Americans seek what they want. We care little about Constitutional procedure and less about the work of making the machinery work as the Founders intended. It’s the thinking typical of political regimes’ last days, when belief has gone and people just follow the forms. {We’re back to one post per day, as I consider winding down this project.}
The Supreme Court has legalized same-sex marriages. David Fontana at Slate gives some of the typical liberal cheering for the Court’s decision on same-sex marriages: “The Justices’ Justice” — “For years we feared the consequences of pushing social progress through the courts. Obergefell v. Hodges will prove we shouldn’t.” I suspect he’s cheering prematurely.
For a clearer example of thinking on the Left see Matthew Yglesias’ reaction, exultant and quite daft (red emphasis added)…
What’s more, it’s a huge analytic mistake to assume that striking down some law is an anti-majoritarian action. The way the United States government works is that change is very hard. Given the current state of gridlock in Washington, it’s pretty clear that neither a gay marriage legalization bill nor a gay marriage illegalization bill could pass. On marriage equality, like on virtually every other issue, the status quo is simply likely to prevail. Into the breach steps the Supreme Court — in this case, on the side of the majority according to polls.
All in all, I think the American system of checks-and-balances has a lot of flaws. But unelected judges invalidating unjust laws that a majority of the public wants invalidated is basically the system working at its best.
Yglesias cheers the new order when unelected Justices do our will, guided by polls. Self-government by couch potatoes, without politics, run by black-robed gurus!
Conservatives object to this decision (and that allowing Obamacare) in the traditional fashion of those unhappy with court decisions, talking about the court’s pretensions to supremacy eroding its legitimacy, destabilizing the balance between the three branches, and a threat to representative government. It’s the latest chapter of an argument going back to the 19th century (and the ruling about Dred Scott, the mother of judicial activist, in 1857).
A more interesting aspect of the Left’s cheering is their blindness to a major trend of our age. The Right has been gaining power at all levels of government since the late 1970s, including the courts. Conservative Justices are not shy about using their power, as we have seen from their rollback of the Voting Rights Act, campaign finance regulation, and a dozen other issues. It’s a bad time for the Left to be cheering the discretionary exercise of judicial power.
The Left has had its turn running an activist court. Depending on the next few elections, now the Right might get a turn at the controls. Soon liberals like Yglesias might be yelling “STOP” to the courts, repeating arguments the Right has made since the Warren Court.
These vignettes of the Left and Right trading places show the naked tribalism of our politics, and that neither side has much concern for the Constitutional machinery. That’s our responsibility. If we don’t care, nobody cares, and the machinery eventually will break. We must care about how the law is made as much or more than its text.
The Court’s weak foundation
The concerns about the Court’s activism eroding its legitimacy might prove correct. Gallup’s data shows that American’s confidence in the Supreme Court varied from 40% to 56% between 1973 and 2006. Since then it’s run between 30% and 39%. It was 30% in 2014, and 32% in June 2015 — the lowest levels of this Gallup poll’s 42 year long record.
What happens if it breaks down into the 20%’s? The Courts lack the inherent legitimacy of Congress and the Presidency produced by elections. The other branches might begin to pushback against judicial over-reaching. Future presidents might reuse Andrew Jackson’s (apocryphal) words: the Court has made its decision, now let them enforce it.
The big picture
Laughter from Europe greeted the Constitution’s birth, from their confidence that a regime could not endure based on its people’s love of liberty and their self-disciplined allegiance to mutually-agreed upon rules. Perhaps they were right.
Respect for the words of the Constitution, for the specific consent of the people which empowered it, for the love of the Constitution in the people’s hearts … all of these things fade away, day by day. Unless we change course, eventually the American Constitution will become a minor procedural document, a guidebook for the jousts elites hold to determine their relative power in the new regime.
Our Constitution is just an idea which we inherited from the Founders. We created it, and its death will give us the experience to do better with the next version. The Constitution is not America. We are America. We are strong because of our ability to act together, to produce and follow leaders. We are strong due to our openness to other cultures and ability to assimilate their best aspects. We are strong due to our ability to adapt to new circumstances, to roll with defeat and carry on.
We will be what we want to be. The coming years will reveal what that is.
For More Information
Recommended: Waiting for SCOTUS” by Rob Hunter at Jacobin — “By fixating on the Supreme Court, liberals have inherited the framers’ skepticism of popular sovereignty and mass politics.”
If you liked this post, like us on Facebook and follow us on Twitter. See all posts about our Courts, and especially these…
- Forecast: Death of the American Constitution
- Another American judge weakens the Republic’s foundation.
- Civil rights just took a step forward, the slow hard way. The right way.
- Should we thank the Court as it rescues us from our bad laws? Or just bow?
- The Court overturns two laws passed by Congress. Everybody cheers!
See all posts about the American family, and especially these…
- What’s the future of the family in America? How will that change our government?
- Do we want to bring back traditional marriage? What is traditional marriage?
- Men are “going Galt”. Marriage is dying. Will society survive?