Updated: Oct 15
A dear, longtime friend of mine, a lesbian and eloquent, resolute defender of LGBT+, posed this question to me after reading my essay on Originalism v. a Living Constitution:
"How are abortion and gay marriage not a question for the judiciary?"
This question goes right to the heart of the confirmation hearings currently underway for Justice Amy Coney Barrett.
We often look at Supreme Court judges (at least I did) as those who should right a wrong when no one else would or could - the final arbiters of justice. The court of last resort, right?
Under the separation of powers doctrine, however, this is NOT the role of the Supreme Court, or judges in general.
The judiciary is not where right v wrong is decided objectively. The judges do not make decisions based on natural law.
They do not say, "setting aside the laws of man, what would Jehovah, or Elohim, or Allah, or Jesus, or the Alusi, or the Yoruba, or Tiandi, or Tianzhu, or the Anunnaki, or Zeus, or Anat, or Quetzalcoatl, or science, or my societal class, or my political party, or whomever or whatever I revere as the ultimate source of right and wrong - what do I perceive that THEY say I should do?"
No, to the judges, the ultimate source to which they look is the written law, i.e. "constitutional law" - the Constitution and all of its amendments, the will of the people as enshrined into law, the most recent time they did so. The highest law of the land that a judge recognizes in her official capacity is not God, it's the Constitution.
This doctrine protects us from the tyranny of the minority, i.e. the subjective decisions of five unelected judges. When a case is brought before the judges, therefore, they decide the case based on its merits compared to the written law.
The purview of right and wrong, of natural law, is left to the people, as decided through the messy back-and-forth process of representative democracy.
This is slow. It is not nimble. It is frustrating, even agonizing when we believe we're on the wrong end of the "will of the people" - as blacks were for many years, as women who could not vote for many years were, etc. The founders designed the machinery of our political process to move very slowly so that movements in a bad direction were difficult and made slowly. Conversely, so are movements in a good direction. The alternative, however, is Madison's "spectacles of turbulence and contention" that characterized governments closer to a true democracy throughout history.
So, we must converse and convince, we must protest and plead, we must march and make peace with the present while we work towards a better world, a world where the majority recognize the justice, the rightness of our position and together we amend the law.
When Adams said, "Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other", I believe he had this idea in mind - our system is wholly reliant on a people who desire and act in a way that moves ever closer, however slowly, to a society that lives in accordance with natural law, actual, objective justice. As far as gay marriage and abortion go even Justice Ginsburg, activist though she was, favored this approach - the incremental back and forth of the judiciary ruling where it could, but the heavy lifting be done by the people, in the legislature. She said, "that would have been my ideal picture of how this issue would have gotten resolved instead of having the Supreme Court as the single decision-maker."
Now to the painful point. There obviously was no right to abortion or gay marriage in constitutional law. The people never conceived of or created those rights through the constitutional process.
That doesn't mean those rights can't be created, they certainly can, but using the Supreme Court to do an end-run around what is clearly a legislative role has obviously moved us in the direction of "turbulence and contention" because the people feel coerced, at least or especially on the subject of abortion.
And because an end-run was done, abortion advocates live in regular fear of a shift on the court that might do an end-run in the opposite direction. Turbulence and contention indeed.
Under our form of government, the people are sovereign and the ultimate arbiters of right and wrong. The founders, knowing that within us exists both reason and irrationality, created a complex system that slows down the deliberation and pace of change in the hopes that the former attribute comes out victorious and not the latter.