Judicial activism causes harm. The Obergefell ruling written by Justice Anthony Kennedy will likely cause four distinct types of harm to the body politic: to constitutional democratic self-government, to marriage itself, to civil harmony, and to religious liberty. It’s a major theme of my forthcoming book Truth Overruled: The Future of Marriage and Religious Freedom.
1) Harm to constitutional democratic self-government
The ruling has already and will continue to cause harm to constitutional democratic self-government. As Justice Antonin Scalia points out in his dissent, “It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.” Constitutional democratic self-government is vitally important; indeed it is our first right.
Scalia continues: “This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.”
Of course, democratic self-government isn’t unlimited. That’s why I’ve referred to constitutional democratic self-government. For We the People placed limits on the authority we delegated to the political branches of government. That’s what a constitution is all about. Scalia therefore notes that the “Constitution places some constraints on self-rule—constraints adopted by the People themselves when they ratified the Constitution and its Amendments.” But apart from the limits We the People placed on ourselves, “those powers ‘reserved to the States respectively, or to the people’ can be exercised as the States or the People desire.”
So the question before the court was “whether the Fourteenth Amendment contains a limitation that requires the States to license and recognize marriages between two people of the same sex. Does it remove that issue from the political process?”
Scalia’s response: “Of course not.” And that’s why judicial activism has done harm to self-government.
Scalia concludes: “This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government. … A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.” Why not? Because such a system disparages the ability of ordinary Americans to govern themselves.
Another reason why the court’s claim to super-legislative power should trouble anyone concerned with representative government is that the court itself is not representative of the American people. Scalia notes that the current Supreme Court “consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School.” Besides their elite legal background, Scalia points out a couple other relevant facts:
Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single South-westerner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination. The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning asjudges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage. But of course the Justices in today’s majority are not voting on that basis; they say they are not. And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.
No social transformation without representation: our constitutional democracy in a nutshell.
2) Harm to marriage (read more here)