First appeared in print in The Rhinoceros Times, Greensboro, NC
Cool New Rights Are Fine, but What About Democracy?
In my review column this week I talked about the balance between government regulation on one side and the forces of the free market on the other, and how important it was to maintain a balance between them for the good of all.
But there is one place in American public life where the balance is completely gone. I speak of the Supreme Court's outrageous power to make sweeping, society-changing experiments with no basis whatsoever in written law.
The dictatorship of the court has now gone to absurd lengths. Not a word in the Constitution or any of the amendments gives the federal government even a shred of authority over laws respecting sexual and reproductive behavior.
No one can even pretend that there was ever the slightest intent on the part of lawmakers to make aberrant sexual behavior legal in every state as a matter of Constitutional law.
The recent decision by the Supreme Court to strike down the anti-sodomy law in Texas was in direct violation of the precedent set by the Supreme Court itself twenty or so years ago when it upheld a nearly identical Georgia law.
Was there any amendment to the Constitution in the meantime? No.
There is no such thing on this earth as a human society that does not closely regulate the sexual and reproductive behavior of its members, to one degree or another. So it's not as if the Supreme Court can draw upon some claim of "natural law" or common law as the basis of its recent decision.
But the merits of the decision as social legislation are not the issue. What matters to me, and should matter to all of us, is the process by which this new national "law" was created.
The American system is supposed to be a democratic republic. No one rules by divine right, making ex cathedra pronouncements from which there is no appeal.
On the contrary, in America social change is supposed to come about gradually, and usually piecemeal, as state legislatures and the Congress wrestle with change and work out compromises until a new consensus emerges.
But the Supreme Court has stolen from the legislative branch powers that have never belonged to the courts and which the courts are supremely ill-suited to carry out. The interpretive function has now become dictatorship -- and the Left knows it.
That's why they are fighting so hard to keep their iron grip on this new dictatorial institution that rams social change down the throats of people who not only never got a chance to vote on it, but when they do vote against it, find their laws struck down again and again without any consent on the part of the governed.
If states had voted (as most did) to repeal their anti-sodomy laws, fine; if people wanted to live in a state that did not have such a law, they were free to move there. It's one of the main benefits of a federal system.
But now, if any community in the United States wishes to deviate from the new Puritanical Left, they are slapped down instantly. There is no room for variation or difference in the New Puritan Dictatorship. All people must think correctly and tolerate exactly the same list of Tolerables and ban exactly the same list of Intolerables -- all of them decided by a priesthood that makes no reference either to social precedent, genuine science, or the will of the people.
And as long as this elite Puritan group holds control of the Supreme Court, the only way to undo any of their undemocratic edicts is to get two-thirds of both houses of Congress and the state legislatures of three-fourths of the states to amend the Constitution.
Or at least, so it seems.
There is another way.
If a simple majority of Congress passed a bill declaring that the Supreme Court's decision exceeded the authority of the Supreme Court because there is no basis for that decision in the written Constitution, and forbade the executive branch to enforce this edict of the Supreme Court in any way, and authorized the state governments to ignore the unconstitutional decision if they so choose, and if the President then signed that bill into law, then ...
Then we'd have a constitutional crisis of the first order. But the Supreme Court has no power to enforce its edicts if the legislative and executive branches refuse to obey.
And there is no requirement that any other branch of government obey the Supreme Court when it detects hitherto unnoticed and unwritten "rights" in the Constitution.
The Supreme Court certainly has the power of Constitutional review, but it has no power to originate legislation, and that is certainly what this most recent decision -- like so many recent decisions -- does.
So when the Supreme Court exceeds its bounds, it, too, should be subject to Constitutional review by the other two branches of government.
If Americans want to change their social policy, let us do it as the Constitution suggests -- by legislation and, if necessary, by constitutional amendment. It's a slow process -- but it allows plenty of chance for reflection, for discussion, for second thoughts, and for the building of consensus.
It may be that right this minute, there is already a vast majority of Americans who are quite ready for the change that the Supreme Court just enacted.
My point is not that the will of the majority is being flouted. My point is that the will of the majority was not even consulted.
And we cannot pretend to be a democracy when that is the case.
Copyright © 2003 by Orson Scott Card.
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