—Note, for context see the two previous posts—

 

In this post I want to explore a little further the attitude expressed by Shannon Minter and Dennis Herrera, that the courts–rather than the people–are to decide important moral issues in this country. An anonymous commentator recently posted a comment to one of my blog entries, arguing that contrary to my complaint, courts are supposed to decide these moral issues for America.

 

S/he wrote: “That’s the point of having courts – to avoid the main flaw of democracy, majoritarianism. In the early 20th century the majority of americans were happy with segregation, and it was the job of the courts to choose the moral right despite the will of the people. Our courts, on the highest levels, are free from election for this reason. As a side note, I have no interest in seeing polygamy legalized and I don’t believe that religion should ever be afforded these special rights by reason of their participants credulity.”

 

This is a widely held belief among Americans. They have become so accustomed to courts deciding controversial moral matters for this nation that they have come to believe it is their job to do so. Some of my questions/comments to the anonymous poster are worth repeating here:

 

Where do you get the idea that the purpose of the courts is to choose the moral right despite the will of the people? Do you find that in the Constitution? No. Do you find that in the writings of the Founding Fathers? No. You are talking about how the government is supposed to function. If you are going to assert that the purpose of the judicial branch is to choose the moral right when the majority won’t, you’ll need a reference in the Constitution that says so, because that is the document detailing the function and responsibility of each branch of government.

 

What makes you think judges are in a better place to judge what is right than the rest of us are, including the other two branches of government? You seem to presuppose (whether aware of it or not) that judges are morally and intellectually superior to everyone else. Nonsense. If judges can overrule the will of the majority whenever they do not like it, then we do not have a democracy; we have an oligarchy.

 

You also seem to presuppose that whenever judges make a decision that goes against the will of the majority, that such a decision is for the moral good. But why believe that? It may be easy to think that these days given the liberality of our judges and their judicial philosophy. But what if the tables were turned? You sound like you might be a social liberal. What if the majority of Americans were social liberals like yourself, and yet the justices were social conservatives? If they kept overturning the will of the people on the basis that the will of the people was immoral, would you be saying “the purpose of the courts is to choose the moral right despite the will of the people”? I highly doubt it. You would be saying the courts are interfering with democracy. I would agree. Let me give you an example.

 

I oppose embryonic stem cell research (but support the morally neutral adult stem cell research). I happen to live in CA, a state that recently approved $6 billion dollars in research dollars for this kind of research. My fellow citizens voted this in. While I am completely opposed to it, and while I am being forced to fund it with my tax dollars, I would not think of trying to overturn the law by shopping my case to some court that would do just that. It was the will of the people. And clearly, it is Constitutional. I know so because our Constitution says nothing about ESCR; therefore, judges have no business ruling on its legality. What I will do, however, is work to persuade my fellow citizens to change the law. I will work to change their mind/will, so that the majority will shift to my position. That is democracy. Unfortunately liberals cannot persuade the majority to adopt their view, so they circumvent the democratic process by taking their case up before unelected judges who share their views, and get the law pronounced “unconstitutional” (even though 99% of the time the Constitution has nothing to do with it).

 

The fact of the matter is that the personal opinion of a justice should have nothing to do with his/her decision. Their job is to interpret what the law is, not what they would like it to be. When the Constitutionality of a law is in question, again, the purpose of a justice is not to determine whether they think it ought to be permitted, but whether the Constitution permits it. That is a question of interpretation of a historical document. It’s not a question of a judge’s own personal views on the issue.