by Marc A. Levin
Posted Nov 16, 2004
What mandate on moral issues, if any, did voters deliver to President Bush in the 2004 election? While liberal activists have attributed Bush's victory to homophobia, exit polls indicated that 35 percent of Americans favor gay marriage while another 25 percent support civil unions. Similarly, a majority of Americans favor restrictions on abortion, but not an outright ban. However, there is a consensus favoring the appointment of conservative judges who recognize that judicial restraint is itself a moral value.
A September AP-Ipsos poll revealed that 56 percent of Americans prefer the appointment of conservative judges while only 37 percent prefer liberal judges. A clear majority of Americans believe that judges should strictly interpret the law and that legislation from the democratically elected branches of government, not from the bench, should be the engine of social change.
The common thread in nearly all of the moral issues that influenced the election is that judges have pushed the legal envelope, creating new rights out of whole cloth where there is no public consensus. The most obvious is abortion. In its 1973
Roe v. Wade decision, the Supreme Court miscalculated, believing that the legalization of abortion in some states at the time presaged a public consensus in favor of abortion that has materialized in Europe, but not here.
It is no accident that it was the Massachusetts Supreme Court decision declaring a new right to gay marriage, not the U.S. Supreme Court's
Lawrence decision finding a right to sodomy, that most influenced the election. Both rulings, like
Roe, rest on the tenuous foundation of a judicially created right to privacy that is unmentioned in the U.S. or Massachusetts Constitution. However, unlike in
Roe, the U.S. Supreme Court in
Lawrence did not misread public opinion. Even the minority of states that prohibited sodomy rarely enforced their laws.
As with abortion and gay marriage, federal courts have legislated against the public's will on the issue of religion. In 2002, a federal appeals court struck down "under God" in the Pledge of Allegiance, a tradition so overwhelmingly supported by the American people that the U.S. Senate voted 99-0 to oppose the court ruling. Federal courts have also invalidated popular public displays of the Ten Commandments, even though a frieze of the Commandments is emblazoned on the walls of the Supreme Court.
The rulings on the Pledge and Commandments are unsupported by the wording or intent of the Constitution, which was simply designed to ensure there would be no federal church and every American would be free to practice their own religion, or no religion at all. Given that the same Continental Congress that declared America's independence began with a prayer delivered by a minister, it is inconceivable that the founders intended to eradicate religion from the public square.
Beyond any one moral issue, Princeton University Professor Robert George has argued that judicial restraint itself is a moral value. The liberal notion of a "living Constitution" that can effectively be amended by an unaccountable judicial elite clearly contradicts the democratic concept of rule by the people. A judicial dictatorship is no more moral than any other kind of tyranny.
Nonetheless, judicial review is a valuable check on absolute majority rule, protecting those rights so fundamental that they have been enshrined in the Constitution, ensuring that they will not be denied to an unpopular group at a time of great public passion. However, only a jurisprudence constrained by the literal wording and original intent of America's founding documents can possibly keep this useful check on majority impulses from inviting judicial lawmaking.
Many Democrats have wondered how they can regain a foothold in the heartland without changing their views on abortion, gay marriage, and religion in the public square. Their solution is to renounce judicial activism as a means of social change and instead patiently pursue public consensus through persuasion and debate.
Remarkably, there are signs this may be occurring. A November 12 New York
Times article entitled "Caution in Court for Gay Rights Groups" reports that these groups are largely discarding their original plans to challenge the anti-gay marriage ballot measures, concluding from the large majorities favoring them that a virulent backlash would be triggered even if they won in court.
As President Bush prepares to fill the anticipated vacancies on the Supreme Court, Democrats in the Senate should heed the example of gay rights activists and reject judicial lawmaking as an instrument of social change. After all, even if
Roe is overturned, abortion will not thereby be outlawed, but merely returned to the democratic process in state legislatures throughout the country. As we promote democracy in Afghanistan and Iraq, perhaps more democracy at home is nothing to be afraid of.
Mr. Levin is an attorney at Potts & Reilly L.L.P. in Austin, Tex., and a former law clerk to Judge Will Garwood on the U.S. Court of Appeals for the 5th Circuit.
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