A NEEDED RESTRAINT ON RUNAWAY JUDICIAL REVIEW
The controversy of the moment is President Bush's endorsement of a Constitutional amendment defining marriage as a union between a man and a woman. For a desperate last stand against this move by an up till now fairly stalwart defender of Bush, read Andrew Sullivan's blog. For me, the main issue is judicial review.

The Founding Fathers were keenly aware of the human tendency to abuse power, and designed a constitution of "checks and balances" to prevent it. There were three branches of government, with separate powers: judicial, legislative and executive. The executive could not pass laws, and for many decisions he required the authorization of Congress or the advice and consent of the Senate. The legislature was divided into two houses, so that one wouldn't become tyrannical, and the legislature was also held in check by the courts. And the courts-- what were they held in check by?

Nothing. The courts are the Constitution's Achilles heel, the weak link in its web of checks and balances. Liberals got a nasty taste of this in the case of Bush vs. Gore in 2000, when the Supreme Court ruled against their candidate and there was nothing to do but swallow it. They thought it was unfair, a mockery of legal procedure, but there was no recourse. Conservatives are used to that. All the nation's children are sent to schools year after year where they get taught a secular humanist curriculum which, through its studied silence on what matters most, makes an eloquent and endless case against their most cherished beliefs-- and, to add insult to injury, this discrimination is carried out in the name of religious neutrality! But what can you do? You just submit. We have a vast military to protect us against foreign threats to freedom and democracy; but against the judges, we are as helpless as children before a man with a gun.

In this respect, we are formally similar to Iran. Iran is a country ruled by an elected parliament, with universal suffrage; it's democratic except for one thing: judicial activism. There as here, judges can overrule the will of the people. In Iran, the result is that the democratic element in the constitution is a complete fraud. Here, fortunately, judges have happened to live by a more enlightened belief system and have been more restrained and at least somewhat more deferential to the will of the people, with a few signal exceptions such as education. I should add, by the way, that we need courts to protect our rights against tyranny of the majority; but in the process we become helpless against the usurpation of legislative authority by judges. Democracy's relationship to judicial review is something like the U2 song--

With or without you,
With or without you, oh-oh
I can't live
With or without you.

There is always the risk that the courts will decide to disregard the law and just impose their will, the only (trivial) constraint being that they have to mask their usurpation by some sort of manipulation of legal texts already in existence. This has been happening for a long time already. But how far can it be allowed to go, and how long can we continue to call our policy a democracy when law is made by unelected judges? Those are hard, subtle, perennial questions, but sometimes the answer becomes clearer. The idea that a right to gay marriage is somehow "in the constitution," unbeknownst to, and contrary to the opinions of, those who authored it and generations of people who lived under it, is lunacy.

If gay marriage were legalized through the democratic process, my reaction would be very different. Ultimately, I don't believe that marriage is just a socal contract, I think it's a reality, and a same-sex relationship just isn't a marriage, whether we want it to be or not; but I realize there are a lot of problems for that view, so let's leave that to one side for now. What is in prospect is the judicial imposition of gay marriage, which in my opinion would frankly compromise the democratic character of our polity. This seems to be more or less Bush's line:

"After more than two centuries of American jurisprudence and millennia of human experience, a few judges and local authorities are presuming to change the most fundamental institution of civilization," Bush said. "Their actions have created confusion on an issue that requires clarity."

Eminently reasonable. I wouldn't be especially pleased to see FMA pass, but I think the threat of a consttutional amendment is useful even if it never passes. By telling the courts that further escalation will cause Republicans to resort to amending the constitution, we encourage them to stand down and let the people rule.