Thursday, June 26, 2003

Ok, so the rage is a little cooled. Here's the roundup on reaction to the latest example of the Supreme Court deciding that it should be the decision maker in the nation:

Clayton Cramer correctly points out that the Court was dishonest, at best, about the bases for its ruling.

The usual band of Libertoid suspects is happy that a bulwark against incest is now gone. (That's as much equal time as they get.)

Feddie over at Southern Appeal has a fantastic roundup (with links). I won't spoil the best part, but you can jump to it here.

Orrin Judd is succinct:

You can defend or oppose anti-sodomy laws on the merits, but there's something no one can do who cares about constitutional government: concede the notion that the Court can strike down ancient laws on the basis that they violate some newfound liberty. If such laws are to be stricken it should be done only by legislatures or via the constitutional amendment process.
Stuart Buck surprisingly hasn't weighed in -- surprisingly because he's a very bright appellate lawyer, and this is right up his alley. UPDATED: Buck's in the house.

Updates to come, including a full explanation of why this upsets me so much.

UPDATES STARTING NOW: Ben Domenech has a full-length attack here. My only beef with Ben on this is that he seems surprised that this "casts the court in a position of playing political games instead of actually fairly interpreting the law." Poor guy.

Paul Cella is in high dudgeon; I'd quote him, but I wouldn't be doing him justice. Do stop over and read him; but please wait until after you've read what I've written, lest my own writing seem the worse for it.

Now for why this upsets me:

(Please read the majority opinion, Sandy O'Connor's opinion, Nino's dissent, and Thomas's dissent before proceeding.)

The Court, very deliberately, smashed society at its base.

Let me elaborate, for fear that my two to three readers will think I'm either exaggerating or carrying some sort of animus toward folks who like synchronized swimming, so to speak.

A society is a collection of individuals bound by consent and a shared set of moral norms, frequently formalized as laws. Thus, one may have a society that institutionalizes certain kinds of killing (the Danes, Jutes, and so on from Beowulf's time, with their respect for honor killings; our society, with the death penalty; samurai culture, with seppuku; and so on), family arrangements ("traditional marriage," patriarchal polygamy, and so on), wealth distribution (our system offers a very organized liberty in this regard; more communal societies do not), and so on. At base, these represent common moral judgments. It is bad to kill; it is bad to kill, unless the man whom you are killing insulted your clan; it is good to have one man and one woman as the base of a family arrangement; and so on. Each law, each regulation, is nothing more than the result of a balancing act of various moral principles. This is the essential truth that the Libertarians -- who are, essentially, individualists with a delusional view of human nature -- have sadly forgotten: In order to make a society function, one must be willing to forego certain liberties to the majority's mores. Thus, I may not slaughter every doctor who slices up children in utero for fun and profit, because society has made two very important moral judgments: (1) It is bad to kill someone who neither threatens you, nor those close to you; and (2) it is bad to take the law -- especially a law not recognized by the majority of society -- into your own hands, because this causes chaos and harm out of proportion to the justice you may or may not do. (Indeed, another moral judgment is at the base of this: It is better to let women kill their children in the womb, than to force them to take the consequences of their own actions bring the child to term.)

To strip a society of its ability to legislate common morality is to prune, and eventually destroy, that society's ability to survive. The whole of our law is predicated on moral judgments and ideals. We take our law from Germanic moral judgments, Roman Law, and the Code of Canon Law. Each of these is at base a series of moral judgments. Our old common law -- the law from England, the law before parliaments and legislatures sat with some self-importance and some legitimacy and began to record our law -- was always a moral act. It is not licit that a man should go onto another man's property and take the fruit of that property for his own. Whoso takes another man's wyfe for his own shall suffer a penalty at law. You get the idea.

Our states are the most democratic -- i.e., the most responsive -- governments we have. They respond best to majority moral suasion, quite simply because they are both closest to, and most concerned about, social cohesion. When you strip a consensual government's ability to regulate on this principle -- which, being consensual, is a rare regulation -- you strip its ability to moderate and aid interaction among its members. Much as the Libertoids may wish otherwise, society is both a collection of individuals and an organic thing in itself. It is in balancing that dichotomy that an acceptable government exists.

There is nothing at all conservative about celebrating social revolution by judicial fiat. Or, as Orrin Judd puts it: "[T]he Republic is always weakened when intellectual elites find it necessary to impose via judicial fiat that which they are incapable of securing through the political process."

On a related note, to all who see this as something loosely akin to desegregation: Kindly shoot yourselves. You either have lost any sense of proportion, or are in the habit of talking about things about which you know very little. Slavery and Jim Crow were murderous, oppressive systems that didn't merely seek to control sexual interaction; they dehumanized, slaughtered, degraded, and, you know, segregated a large class of people into what we could charitably call ghettoes. Or, as a much brighter man than I put it, "When I watch Ken Burns, I don't see too many people picking cotton because of their private, consensual sexual activity."

The Court aggrandized more power to itself, and did so with the sort of language one always uses when one is covering a great lie: "liberty of the person both in its spatial and more transcendent dimensions," etc. A court confident that it was indeed extolling a mandate "rooted firmly in the Constitution," so to speak, would not employ such language.

Social cohesion, and therefore societies, die by such incremental steps.

No comments: