Last edited: February 06, 2005

Court Plays Politics With Democracy

Des Moines Register, June 30, 2003
Box 957, Des Moines, Iowa 50304
Fax: 515-286-2511

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 traditions.”

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 change.

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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