FIVE MAN RULE (via John Resnick)

The Death of Morality?: Second-guessing democracy (Jonathan F. Cohn, July 2, 2003, National Review)

[T]he dissent is ultimately incorrect in its conclusion that the Court's decision means the end of morals legislation. Paradoxically enough, the decision confirms that morality is a viable basis for law. The Court's decision was all about morality, the justices' morality. There is no other way to explain the result. As noted above, the Constitution's text and this country's history and traditions do not recognize a right to homosexual sodomy. And Supreme Court precedent is equally unsupportive, as less than 20 years ago the Court reached the opposite conclusion to the one it formed last week. Finding no basis for its decision in the Constitution, history, or precedent, the Court majority had no choice but to rely on its own collective moral judgment.

Hence the great irony of the Supreme Court's decision: Morality was the only reason for holding that public morality is irrelevant to the
constitutionality of a law. In effect, what the Court held was not that morality has no place in constitutional jurisprudence, but only that public morality is irrelevant. The justices' own morality is decisive. Morals laws--such as prohibitions on bestiality, adult incest, polygamy, and, yes, gay marriage--pass constitutional muster if, and only if, five Supreme Court justices say so. The Court's holding does not signal the end of morality, but merely the transfer of decision-making power. Instead of permitting the public to enforce its moral views--as it should in a democracy--the Court (or, more aptly put, six members of it) surmised that it was the final moral arbiter. Because the law was "silly" (as Justice Thomas accurately described it in his dissent), the Court struck it down.

The bell thus tolls, not for morality, but for government by the people, an outcome that is neither "liberal" nor "conservative." Judicial fiat can be--and has been--used to serve the goals of both sides of the ideological spectrum. At the beginning of the last century, for example, the Supreme Court invalidated worker-welfare laws to benefit industry. The constitutional provision ostensibly relied on to reach that conclusion, the Due Process clause, is precisely the one used by today's Court to create a right to gay sex. And the next invocation of "Due Process" (depending on what alleged rights become acceptable to the legal elites in future years) may very well be equally "conservative"--perhaps at the expense of environmental programs or other social-welfare legislation. Alternatively, "Due Process" could be used for ends that are neither liberal nor conservative, but just plain-old wrong. For example, in Dred Scott, the decision that sparked the Civil War, the Supreme Court imposed its view of morality in finding a constitutional right to own slaves as property, immune from federal government interference.

Judicial activism can thus work in many directions, so until the high Court refrains from second guessing the moral choices of the democracy, the loser is not the Right or the Left, but the American people at large.

You'd think that Democrats would be particularly worried about this effect since they seem unlikely to be appointing Justices for some time. Posted by Orrin Judd at July 3, 2003 7:35 AM