Isn't the real problem that the law as it currently stands is supported by only 26% of the adult population?

The problem is the 5 in black who support it.

The more fundamental question is how much the opinions, how ever well intentioned they might be, of the majority should be imposed upon the minority.

Particularly in a secular society.

Jeff:

Certainly to a greater degree than the minority opinion should be imposed, no?

Jeff:

The constitution seems to take of the protection issue very well - what gets some of us so upset are the penumbras and emanations and ethereal mist. By creating (and that is the proper word) "rights" and issuing pronouncements on social questions, the courts have put into place a situation where a minority of one can change society, without any legislation (or public debate) whatsoever.

If elected officials voted to ignore or overturn the Bill of Rights, then fine, a minority of one should be upheld against such actions. But the cases bedeviling the nation today are not like that. And they are not life-and-death situations (at least for the litigants) either, no matter how much NARAL or GLAAD want them to be.

Other situations have mitigating factors as well: when Lincoln suspended habeas corpus, certainly that was shocking to some (imagine the reaction today!), but it did not last, and it did not cause the upheavals we see with the social issues in the courts today.

The number of posts about slippery slopes in recent days do point out one dangerous fact: a President or a legislature can do things which may be 'unconstitutional' (and can be reversed politically), but a court never can. The coefficent of friction is reduced to zero when the courts act as they have. And just how is such an ad hoc court to respond to someone who wants a larger penumbra?

Jeff --

There are only three choices:

the rule of one;
the rule of a few; or
the rule of a majority.

Choose.

I don't think we want either unrestricted majority rule of the rule of judicial fiat. But to counter OJ's reply to Jeff, it is not the case that to restrict the extent to which a majority can impose it's will on a minority is to allow rule by a minority. The same restrictions apply to the minority, with the added restriction that the minority is unlikely to get their will encoded into law in the first place.

Robert:

Yes, in theory, but that principle of ultimate and extraordinary protection for fundamental core rights is mutating into an everyday "business as usual" working guide through which courts are discovering new rights, second guessing and over-ruling the elected legislature and impose the personal views of a minority of lawyers. It isn't the principle that is objectionable, it is the widening scope and increasing frequency. Don't you know a power play when you see one?

The other day you were remarking how small the percentage of declared secularists is and mocking those here who were complaining about the power of secular elites. This is one very big reason for those complaints. Are you trying to have it both ways? I am still looking forward to the day you, Jeff, or Harry say you are in favour of some progressive social policy, but only by popular vote and not by judicial fiat. Remember, admissions against self-interest do wonders for credibility.

Peter: Ooh, now that was good legalese.

Peter,
I agree with you that the discovery of new rights by the courts is a problem. I am not a supporter of judicial activism, but in cases where there is ambiguity, I am in favor of erring on the side of the minority (ie. individual rights) vs the majority.

I don't deny that there are secularists who are using the courts to promote left-wing social agendas, but much of the support for these agendas comes from religious sources. There is a Religious Left in this country. Barry Lynn is not an atheist, he is an ordained minister of some sort of progressive Christian sect. And to be a secular person is not to automatically be a leftist or a judicial activist. I have been critical in many of my posts of the attempts of the ACLU and PFAW to push the separation of church & state too far, to where it infringes on the free expression clause of the 1st Amendment. I think that the attempts to paint the school choice programs as an establishment of religion are bogus - as long as it is left up to the parents to decide what schools to send their children to.

As far as progressive social causes, I can't think of many that I am in favor of. The gay marriage issue should be left up to state legislatures, the federal courts and the congress should keep their hands off.

You guys are not listening.

There are only three choices:

the rule of one;
the rule of a few; or
the rule of a majority.

Choose.

They are listening, but they chose (b), because right now (b) is like them. Of course, when (b) becomes like us, they'll switch.

They're committed to (b), but realize they can't admit it. That's where the cognitive dissonance is buried.

David: If it makes you feel better, I'm in favor of (a), if the one is me.

Since it can't be, and since it's pretty unlikely I'll be part of (b), I vote (c).

In all seriousness, this can't surprise you: What is it you like to say, never bank on heroism? As OJ says, as long as they get what they want, they love (b); when that stops, they demand (a) or (c).

David:
Since the question is context free, it is impossible to assess the alternatives.

Take religion. Say every person in the US but one is Catholic, and the remaining, lonely, person Lutheran.

Allowing the Lutheran to practice his religion does not constitute the rule of the few, because it imposes nothing on the many.

Therefore, the answer depends very strongly on the degree to which the minority will impose on the majority.

For a great many things in our society, that degree is small or none.

If everyone is Catholic but for one Lutheran, then that Lutheran practices his religion at the tolerance of the Catholics. They could stop him, but choose not too. That is not tyranny of the minority, that is tolerance by the ruling majority.

Sovereignty in the United States lies in the people collectively and indisolvably, as expressed through the decisions of a majority thereof. There is no action open to governments that is denied to a majority of Americans, if they so desire to act.

This is what drives me nuts about modern First Amendment jurisprudence. We don't have free speech because it was slipped into the Constitution by a few G-d kissed men in 1789. We have free speech because Americans today value free speech and choose it, even when they don't like what's being said.

When, on the other hand, Judges torture the language of the Constitution to enact policies that they admit the people never intended when the language was ratified, that is tyranny of the minority -- however laudable their goals might be.

David:

"There is no action open to governments that is denied to a majority of Americans, if they so desire to act".

I could be wrong, but didn't you, Orrin and PJ have a series of postings last spring which emphasized that American democracy was limited and that it was expressly designed to keep certain matters and values outside of the vagaries of majority opinion?

Peter:

But the flaw in democracy is that they can't be. It is only a societal willingness to be denied power that keeps the limits in place. That's why tampering with morality, tradition, etc. is so dangerous. The majority could do whatever it wanted.

The opinions of a possible majority who support occasionally legal abortion should not be imposed on the minority who haven't been born yet.

What OJ said. We limit ourselves. We will continue to do so until the cost gets too high.

True enough - Dosteovsky is quoted on this site often ("Without God, everything is permissible"), but don't forget Chesterton - "When man ceases to believe in God, it is not that he then believes in nothing, but that he will believe anything".