Court Plays Politics With Democracy
Register, June 30, 2003
Box 957, Des Moines, Iowa 50304
By Gregory Sisk
“A society so riven that the spirit of moderation is gone, no court can
save; a society where that spirit flourishes, no court need save; in a society
which evades its responsibility by thrusting upon the courts the nature of
that spirit, that spirit in the end will perish.”—Judge Learned Hand, 1953
Few will mourn the anti-sodomy law, whose death was pronounced by the
Supreme Court on June 26. As Justice Clarence Thomas aptly quoted, this was an
“uncommonly silly” law. Even in those states still retaining such laws,
they were rarely enforced. Most Americans cringe at the prospect of
governmental intrusion into the privacy of the bedroom to criminalize the
sexual behavior of consenting adults.
Nonetheless, we all may come to regret the manner in which this law was
laid to rest. For the anti-sodomy law was not buried by an elected legislature
acting with the consent of the governed. Rather, an unelected body of judges,
removed from direct accountability to the people, executed this democratically
enacted statute by judicial degree.
And in so ruling, the Supreme Court majority made little pretense that its
decision was actually grounded in the text of the Constitution, indeed
dismissing the absence of any specific supporting language as no reason to
hesitate. Nor could the court pretend that its decision to protect certain
forms of sexual behavior was “deeply rooted in the nation’s history and
The court instead preached about human dignity, the enduring bonds of
personal relationships, and the mysteries of human life, questions of moral
philosophy upon which judges have no special competence. And by presuming to
speak as our national conscience, the court risks losing its legitimacy as a
court of law.
As federal appellate Judge Frank Easterbrook explains: “The power of
judges to say what the law is comes from the existence of law. Unless a
question has been settled by the Constitution, a judge cannot insist that
other people abide by his answer. When the document is vague, when the history
is obscure, the living must settle their own affairs.”
We ask too much of the Constitution, and too little of ourselves, when we
view it as the wellspring from which to draw comprehensive notions of public
virtue or when we project into it our aspirations.
Not everything that is good is guaranteed by the Constitution, nor is
everything that is bad prohibited.
When the Constitution truly speaks, the Supreme Court should amplify that
sound loudly and with authority. When the Constitution is silent, the court
likewise should remain silent.
When it comes to questions of sexuality, the Constitution manifestly is
silent. The court thus lacks any warrant for projecting its commanding voice
into the political and moral discourse about such matters. Our Revolutionary
founders fought for the freedom to elect their own representatives to make the
laws. This right of democratic governance is undermined by judicial
imperialism, even when the judges insist they are agents of progressive
The Constitution is an anchor for our ship of state, not the sail.
The framers ordained certain enduring principles that keep the waves of
tyranny from crashing over us.
When the winds of change blast us forward at dangerous speed or when we
tack too hard to port or starboard, we depend upon judges of fortitude and
legal wisdom to cast the anchor overboard and keep us moored in our traditions
of liberty and democratic government.
We have not, however, appointed an oligarchy of judges as our governors in
law or our counselors in morality.
The commission to seek a better society belongs to each of us as
individuals and as a collection of diverse local communities and institutions.
- Gregory Sisk is a professor of law at the University of St. Thomas
School of Law in Minneapolis.
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