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Saturday, June 27, 2015

Some Americans Need a Civics Lesson

By Steve Kindle, CEO Clergy United

A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.                 ~ Justice Antonin Scalia
 Justice Scalia, in his overwrought dissent to the SCOTUS decision to legalize same-sex marriage, provided the opposition with an increasingly used talking point: "five unelected lawyers."

Contrary to the wishes of those who were disappointed with SOCTUS's decision to make same-sex marriage the law of the land, and feel abused, the people DO NOT get to decide what’s constitutional and what’s not. Fortunately, we live in a constitutional republic, not a pure democracy.  For in a pure democracy, if 51% of the people want to lop off the heads of the other 49%, for whatever reason, it would happen.  Our Constitution forbids majority coercion of the minority and in fact was created, in no small part, to protect the rights of the minority.

Ironically (for Scalia, et al), if we were to let the people decide, the tide has turned and the majority of  Americans are now in favor of same-sex marriage.  Most polls show about 60% approval. Given their favorable attitude toward LGBTs, when the Millennial generation assumes power, this will be a long forgotten era of American history.  Just as today when young people are told of Jim Crow and the struggle for Civil Rights, and they are mystified as how this could ever have been, so too will generations from now find it hard to believe that gay people couldn’t get married.

Today, Sen. Cruz showed his hand. As one of the most insistent that the Constitution should be the law of the land and interpreted according to literal and original meaning, he, nevertheless, said this:
"The only way I think to do so is to insist upon nominees who will follow the law, who don’t view being on the federal bench as an invitation to be a platonic philosopher-king, to have nine unelected lawyers decreeing what our answer should be, what our policy position should be on every hot button issue of the day. I think it is a much sounder approach to say let the people decide, let’s vote on it...."
He was one of the first to echo Scalia's "unelected lawyers" verbage, but he was followed by many others. What are we to make of this, except that opponents either don't understand our system, which I rather doubt, or that they are willing to jettison their own first principles when their backs are up against the wall. In this case, the wall being a SCOTUS decision that will be virtually impossible to overturn. So does our Constitutional system of Court oversight only have meaning when we agree with it? God help America if that is the case.

I will just say it as openly and unreservedly as I can.  Homophobia makes people crazy.


Unknown said...

Being a retired lawyer, albeit in a kindred but different legal system, Scalia's dissent as well as the majority opinion interested me. I've been used to seeing decisions from that court which, to my English lawyerly eye, were distinctly making law rather than interpreting it.

It seems to me that the majority, on this occasion, were just following good principles of law, which agreeably surprised me.

However, Scalia's dissent was interesting of itself in that it was over-reaching to try to find some legal rationale for the decision Scalia wanted to hand down, and in the process it trotted out the "making law rather than interpreting it" argument while actually trying to do just what it criticised. The thing is, that's what the Supremes have been doing for about a century now.

I've seen a lot of comments about the dissenting opinions which used phrases like "batshit crazy", however. From here, (and I firmly support same-sex marriage and am pleased we've been there for some years now) that looks like just polemic - it isn't a "batshit crazy" opinion, just a very weak one in the circumstances of the case.

What it does show, however, is that Scalia's previously voiced attitude that strict construction should be adhered to is not a consistent one - in this case, strict construction gets you the right result. In other words, he's fine about making a political judgment when it suits him, whatever he says he's doing.

Steve Kindle said...

I'm glad I merely characterized Scalia's dissent as "overwrought."