Supreme Court always stumbles on social issues

Judges and justices are supposed to do one thing, and do that one thing well. The one thing they are supposed to do is decide cases and controversies by applying the law to the established facts of a particular case that comes before them.  A court that does this one thing well will necessarily be in the business of making ongoing pronouncements of legal principles that will be helpful to lawyers and citizens who seek to know and understand the laws under which they must live.

When a court confines itself to this single purpose it will be doing its job to the benefit of the country, themselves and all of its citizens.

The one big thing that a court should never do is endeavor to decide issues of public policy.  If self government has any meaning at all, it means that we have a government, as Lincoln stated in the Gettysburg Address, of the people, by the people, for the people. Such a government makes public policies in that manner, by the people, not by the judges.

In a Republic, the best form of any government according to Machiavelli based upon his study of the Roman Republic from its founding up until the time in which he lived (1469-1527), as set forth in the Discourses on Livy, is a government in which the people make all laws to determine public policy through their elected representatives.

Machiavelli favored a republican form of government because, anticipating Montesquieu’s words over 200 years later, he said that republicanism is superior to a principality because it involves checks and balances which guard against corruption.  He never said there would not be corruption in a Republic, only that the very nature of a Republic provides self correcting mechanisms to fight against corruption.

Machiavelli held with other writers of his day that distinguished three kinds of government, those being the monarchy, the aristocracy, and the democracy.  Machiavelli found fault with all three of these categories, and said that monarchy becomes tyranny; aristocracy degenerates into oligarchy; and the popular government lapses readily into licentiousness [anyone who has served on the board of homeowners association has seen this latter phenomenon in action]. A Republic was the only form of government that might (but not necessarily) avoid or at least ameliorate these maladies.

In the Discourses, Book 1, Chapter 2, he wrote:

It is a great good fortune for a republic to have a legislator sufficiently wise to give her laws so regulated that, without the necessity of correcting them, they afford security to those who live under them. Sparta observed her laws for more than eight hundred years without altering them and without experiencing a single dangerous disturbance. Unhappy, on the contrary, is that republic which, not having at the beginning fallen into the hands of a sagacious and skilful legislator, is herself obliged to reform her laws. More unhappy still is that republic which from the first has diverged from a good constitution. And that republic is furthest from it whose vicious institutions impede her progress, and make her leave the right path that leads to a good end; for those who are in that condition can hardly ever be brought into the right road. Those republics, on the other hand, that started without having even a perfect constitution, but made a fair beginning, and are capable of improvement,–such republics, I say, may perfect themselves by the aid of events. It is very true, however, that such reforms are never effected without danger, for the majority of men never willingly adopt any new law tending to change the constitution of the state, unless the necessity of the change is clearly demonstrated; and as such a necessity cannot make itself felt without being accompanied with danger, the republic may easily be destroyed before having perfected its constitution.

America’s founding fathers were, I believe, the epitome of the sufficient wise legislator Machiavelli found to be necessary to the establishment of an enduring Republic.  They must have been readers of the Discourses because they took care to include in the United States Constitution, at Article IV, Section 4:

The United States shall guarantee to every State in this Union a Republican Form of Government, …

When judges and justices stoop to the level of a politician and purport to force changes in public policy matters upon the people without their consent, matters such as abortion or gay marriage, they are more likely to stir up resentment and instability than to make the Republic more peaceful, safe, or happy. The result is not the establishment of harmonious change but rather the acrimonious rebellion and discord that carries on for decades into the future.

The court’s efforts to desegregate public schools in the 1954 Brown v. Board of Education decision, held near sacred by some, led to decades of forced busing that angered the entire country. Desegregation was on its way already in America.  Had the Court refused to act public schools would have been desegregated anyway, in an orderly fashion, and decades of forced busing and its attendant dislocations would have been avoided.

The 1973 Roe v. Wade decision rested on Constitutional principles wholly made up by the court out of the imagination of the justices and found nowhere in the Constitution itself. This has resulted in a non-ending acrimonious debate that continues to this day.

The court’s Obergefell v. Hodges decision finding a Constitutional right to same-sex marriage is going to have exactly the same impact on America.  The Constitution says nothing at all about marriage. The entire subject is left entirely to the States. That didn’t stop five justices from doing the same thing the Roe court did in 1973; they simply made it up as they went along.  They invented non-existent Constitutional provisions and set about imposing their personal viewpoints on an entire nation.  The four dissenting justices each wrote a separate opinion, giving the people ample and various legal arguments to make against gay marriage in the years ahead.

In England, legalized abortion was a hotly debated issue as it was in America. It isn’t today. The Brits have made their peace with it. The difference is the British Judges did not pretend to have the authority to decide this issue of public policy. They understood that the people, through Parliament, should decide. As it were, the matter was put to a popular vote and a regime of abortion, more restrictive than in the United States, was established. Since it was voted on and since it is a matter purely of public policy, the people have now accepted it and it is not a burning issue that divides the country.

Before the gay marriage case arrived in the Supreme Court, dozens of states had held elections in which the people voted on whether to honor same-sex marriages. The people soundly rejected gay marriage in nearly all of those elections.  Justice Kennedy, joined by Ginsburg, Breyer, Sotomayor, and Kagan didn’t agree so decided to thwart the will of those voters. Since the Constitution offered them no mechanism to do that, no legal principles to apply, they had to do what the Roe court did. They made up a story and claimed it was somehow blessed by the 14th Amendment.

The justices in the Roe v. Wade case thought they were putting an end to a debate that was ongoing. All they did was throw gasoline on the flames. That is exactly what this court has done with its gay marriage mandate.  Public support of gay marriage has fallen by 6 percentage points, from 48% to 42%, since the decision.  America is more divided now. Thank you Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan. You usurped the power of the people to govern themselves, and set yourselves up as dictators. It won’t work out well in the long run.

[I could have dredged up the 1857 Dred Scott case and the public response to that one and its impact on the coming of the Civil War, but this post is already long]

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