Two issues in the news lately have once again highlighted our propensity to judicial activism. One, the Obama administration announced that it will no longer defend the Defense of Marriage Act; the other involves the Supreme Court decision in favor of Westboro Baptist Church in its public desecration of military funerals. I won’t spend much time on the underlying merits of each, except to say that, in the former, it seems that an oath to execute the laws implies the defense of them in court and, in the latter, it seems that the First Amendment is primarily about political speech, properly understood, and not about grandstanding for publicity.
The primary issue for me in both of these instances is that they should be settled by political and democratic processes, not by the judiciary. This is a mature country of fairly well-settled values, with a republican form of government in each of 50 state jurisdictions with a total of over 7,000 legislators, and with vast numbers of citizen associations that form the voluntary mediating powers and institutions highlighted by Tocqueville that make America exceptional. This is the “civic republic” well-described by Michael Sandel in Democracy’s Discontent, but it has been corrupted by what he calls the “procedural republic”, which essentially demands that we move cultural and moral considerations off the table in our deliberation on public policy. And where has this taken us? To Roe v. Wade, elimination of prayer in the schools, etc., and deep divisions in the body politic because it was denied a political resolution of the issues nearest and dearest to our core. It is time for the procedural republic to step aside and let the civic republic take over. We can handle it.