So the very important posts below by Carl, Pete, and Kate are all about the harm unconstitutional or a-constitutional judicial activism does to our political life.
On abortion: The BIAS of the MSM is finally justified by the Court’s decision that anti-abortion SPEECH is unconstitutional. The Court has said time and again that the issue has been decided, and those who continue to speak oppose the consensus of the reasonable part of the community. The Court’s connection of the “watershed” precedents BROWN and ROE ties together pro-life speech and racist speech. So, as Carl suggests, the FIRST MOVE of the Republicans should be to insist each and every day that the Court had no right under the Constitution to do that.
On SSM: Carl plus the thread reach the conclusion that there are two issues: “What is marriage?” and what is the authority of the Court to resolve that issue. We can’t say that the marriage is a contract between two autonomous individuals based on love. That’s not enough to sustain a RELATIONAL institution. Nonetheless, that kind of definition is arguably the “evolved” product of our sophisticated understanding of liberty today. The Court’s likely assertion of authority is based on the claim that it can reconstruct every social institution on an individualistic basis. That means it has the authority to end political controversy over “what is marriage?” in such a way as to silence publicly those who have another view of what marriage is.
The truth is there’s no national consensus on “what abortion is” and “what marriage is.” One important reason is that the Constitution doesn’t really given us sufficient guidance on how to think about the relevant facts in either case. It does give us enough to think about blacks, women, and homosexuals as free and equal persons. But it doesn’t tell us, truth to tell, what or who the unborn baby or foetus is. It also doesn’t tell us what the relational institution marriage is. We do know enough to know that precluding interracial marriage is plainly arbitrary or based simply on vain animosity. But opposition to SSM plainly is based on a reasonable—although contestable—understanding of what the relational institution is.
The strongest (and it is strong) argument for SSM is something like: Given that no one knows what marriage is, it’s arbitrary to exclude any understanding of what it is from legal affirmation. But that kind of thinking “deconstructs” marriage as such as a legal category. The Constitution can’t be understood to go that far in its individualism without understanding it as commanding a thoroughgoing atomization of American life, without commanding that government not recognize the existence—much less the goodness—of any social institution. Imagine the consequences for “the free exercise of religion.”
So Republicans ought to explain every day the deep and unconstitutional dangers of the Court telling Americans what abortion is and what marriage is. Americans are free to figure out what they think about abortion and marriage according to democratic political deliberation. The current trend points to more and more “voting in” SSM, and there’s nothing constitutionally wrong with that. But we need more “space” and a more fair-and-balanced MSM for really talking about marriage and abortion with persuasive arguments and minimum possible animosity.