At the beginning of this nation, the Founders had in mind that, of the three branches of government based on Montesquieu’s idea of the separation of powers that evolved into the American concept of “checks and balances”, the legislative branch, as representative of the sovereignty of the people, would be dominant and the judicial branch would be inferior. Of course, this balance was altered significantly with the decision in Marbury vs. Madison in 1803, which, in effect, made the Supreme Court the final arbiter of the constitutionality of laws. With this ultimate power over the years since, the Court has produced some shocking results, many of which (the Dred Scot decision and Plessy vs. Ferguson, for examples) were later corrected by the Court itself, by constitutional amendment, or by legislation. However, the recent Supreme Court term has made it abundantly clear to me that we have now reached the point where judicial overreach is a serious threat to representative democracy (see “The End Of Democracy Debate”, September 2000). Possibly not since the Dred Scot decision of 1857 confirming a property right in owning slaves has there been more ominous language written by a Supreme Court majority or language more at variance with the ordered liberty envisioned by the Founders than that in the University of Michigan affirmative action cases (more on this below) and the Lawrence vs. Texas sodomy case. Again, ideas have consequences, and, as Robert Bork warned in his book, Slouching Towards Gomorrah, the ideas of a general and undefined right of privacy and to “personal dignity and autonomy” have now morphed into the radical individualism embodied in the now famous “mystery passage” in the majority opinion in Planned Parenthood vs. Casey: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Really?
At issue here is much more than the particular facts of the cases. What is at stake is the sanctity of constitutional law and the sovereignty of representative government, particularly when they come into conflict with the current “political correctness” of the underlying issue. Columnist Jonah Goldberg has noted that the entire culture is now soaked with the moral relativism implicit in postmodernism, the central assumption of which is that independent moral judgments are impossible. Most people would prefer it otherwise, but the reality is that we are in a war over the future of our culture. There are values at stake here that will determine the fate of the American idea. The public square, i.e., the legislative and political process, is the proper arena in which to fight the battles of this war, and to relegate them to the judiciary is a complete failure of leadership on our part.