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April 07, 2009, 4:00 a.m.
Fiction and Faction
Iowa judges have imposed gay marriage on a state that voted against it.
By Andrew C. McCarthy
Faction is the eternal condition of mankind. “As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed,” wrote James Madison in Federalist No. 10. “As long as the connection subsists between his reason and his self-love, his opinions and his passions will have a reciprocal influence on each other; and the former will be objects to which the latter will attach themselves.”
A society’s capacity to manage faction determines whether it lives or dies. Whether we still have that capacity, or the will to exercise it, is a pressing question. In the culture war, that was made obvious again last week as seven politically insulated social engineers, also known as the Iowa Supreme Court, imposed same-sex marriage on citizens whose elected representatives had enacted a law against it.
Meanwhile, on issues of national security, the secession of the judiciary from our body politic proceeded apace as a federal judge in Washington continued the Supreme Court’s transformation of the Constitution. Once a compact between the American people and the government they created, it is now a global instrument — not just in Guantanamo Bay but, according to Judge John Bates, the world over — a weapon of lawfare to be deployed against our nation by its alien enemies, who are invited to lodge their grievances before tribunals that see themselves not as our servants but as our rulers.
The only thing new about these rulings is their timing. Each is the next logical step in a generational project to remove democratic self-determinism as the touchstone of our republic.
Leftists would supplant politics, the untidy, bumptious business by which the people control their own destiny, with “the rule of law.” With that clever euphemism, they bank on our reverence for the ideal of ordered liberty, hoping we’ll never catch on to the fact that we’re to be ruled not by law but by lawyers — predominantly, progressives trained to regard the law not as a predetermined code to ensure social order but as an evolving tool to promote social change.
The U.S. Supreme Court gave the game away 17 years ago when it reaffirmed the right to abortion it had created — preempting the democratic process — nearly two decades earlier. In their joint opinion for the majority in Planned Parenthood v. Casey, Justices Anthony Kennedy, Sandra Day O’Connor, and David Souter, whose law degrees evidently qualified them as master sociologists, decreed:
Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe[,] … its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court’s interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.
Translation: “Stand down, you rubes. We’ve decided this one for you.” Nothing in the Constitution empowers judges to call on factions to end their divisions. The Framers were wise enough to know that was not possible. Nor are courts authorized to issue “common mandates.” These are nothing more than diktats, rooted not in the Constitution but in the judges’ own subjective values, which they purport to find reflected in our “organic” law the same way Narcissus saw the face of perfection in the pool.
Courts are not there to resolve national controversies, to stand outside and above the United States. They were created as a sub-section of government to remedy individual injuries, and they were given no power to enforce their judgments. That, indeed, is why Hamilton (in Federalist No. 78) anticipated that the judiciary would be the “least dangerous” branch: It would be “least in a capacity to annoy or injure” the “political rights of the Constitution.” In fact, the law of “standing,” which addresses what grievances litigants may bring before courts, teaches that the more a controversy affects the body politic rather than the individual citizen, the less appropriate it is for judicial resolution. It is for just such controversies that we have political rights.
And it is to address the inevitable effects of faction that we have federalism. It is this ingenious design that accommodates passionate dissent without rending the fabric of society. In a nation ruled by federalist politics rather than by judicial whim, gay marriage would be permitted in some places but not most. In most states, but not all, legislation would grant gay partners in committed relationships most of the legal arrangements for tax, inheritance, and other purposes that married couples enjoy. There would be opportunity for homosexuals to adopt children, but adoption agencies performing a vital societal function would not fear being put out of business for declining, for reasons of religious conviction, to facilitate adoptions by gay couples.
In short, a minority would be treated like a minority with dignity. It would enjoy basic rights everywhere, and enhanced rights in a few enclaves, but it would not be capable of imposing its agenda on an unwilling majority. It might achieve that over time, but it might not — and in no event could it move faster than the society was willing to go.
The Iowa Supreme Court claims that equal protection under the law, the principle employed to foist its social-justice vision on Iowans, has no fixed standards but changes with the sensibilities of each generation. That’s absurd. Constitutions embody enduring values. That is why they prescribe elaborate, supermajority procedures for their amendment. They are the permanent social contract. Consequently, modifications are not legitimate unless they represent a societal consensus.
No, insists Iowa’s judges. The meaning of equal protection changes whenever “the conviction of one, or many, individuals” holds “that a particular grouping results in inequality” — at which point “the judicial system” is free to ignore “the influences that tend to make society’s understanding of equal protection resistant to change.”
That’s not the rule of law. That’s dictatorship. And it can’t last.
— National Review’s Andrew C. McCarthy is a senior fellow at the National Review Institute and the author of Willful Blindness: A Memoir of the Jihad (Encounter Books, 2008).
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