Monday, June 27, 2005
Telling it like it is - Lee Harris
Do Americans meekly obey and follow the law to their detriment? Yes! I get very sick at heart as during and after the Schiavo case when so many on the Right insisted that we had to obey the rule of law as it was decided by the courts in Florida.
Bull! If the lawmakers and judges do terrible things, then to hell with them. If they offend the people, then pull them from their pretty perches and tar and feather them.
There is far too much obsequiousness regarding the law and the courts now as Lee Harris illustrates.
posted by Mark Butterworth |
"... there is one group in contemporary American society that did not inherit our exaggerated respect for the law, namely, the very Justices of the Supreme Court and other high ranking figures in our judiciary system. For them, the mere fact that the elected representatives of a community have made certain laws that they deem fit and proper is no reason to respect these laws. Let a state pass laws that ban flag burning or gay marriage, and you will see just how quickly the appointed guardians of our legal system act to make these laws null and void. No undue deference for the mere idea of law restrains our nation's judiciary from deciding, by virtual fiat, what laws may stay on our books, and what laws must go.
In particular, the general populace continues to adhere to the view that those who have been entrusted with the task of interpreting the law -- especially those sitting on the highest court of our land -- must be deferred to, no matter how absurd or capricious their rulings may appear when approached from the perspective of sheer logic.
What explains this mystery? How did Americans relinquish the fundamental right of free people to govern themselves without fear of the capricious intervention of an oligarchy whose values are often diametrically the opposite of the values of those over whom they rule? An oligarchy, moreover, that never needs to worry about being tossed out on its ear or overthrown in a revolution; an oligarchy whose supremacy remains unquestioned even by those who are most bitterly opposed to its high-handed and imperious acts.
For example, should the Boy Scouts be forced to accept openly gay men as Scout Masters? Now here is a question that neither James Madison, nor the other authors of the Constitution, addressed -- and, indeed, it is a question that they would never have dreamed of addressing. Yet, when the Supreme Court decided that this was a proper subject for judicial review, it was asserting that, yes, this was an issue that could be and, indeed, should be decided by consulting the U.S. Constitution. True, they ruled in favor of the Boy Scouts, and thus appeared to be acting with sensible restraint; but this sensible restraint is purely illusionary -- and a simple example will show you what I mean by this.
Suppose that you and your husband get into a fight over how to raise your children. Your husband goes to a family friend, Mr. Jones, and says, "I want you to decide which of us is right. Whichever side you chose, we agree to abide by it." You, however, emphatically disagree with this suggestion, and your argument is a simple one: "Why should we let Mr. Jones become the final arbiter of our lives? If we give him the right to determine which of us is right, then we are, in essence, giving him the right to control our decisions about our children, and, ultimately, we are turning over to him the final say so about how to raise our kids. It's not that I have anything against Mr. Jones personally. He may be a good man, and even a wise counselor. But if we start to depend on him to settle our difference, how will we ever learn to settle these differences on our own?"
Now, in this case, what difference does it make whether Mr. Jones decides that the wife is right or that the husband is? The fact that Mr. Jones appears to be taking the wife's side in the conflict, for example, does not alter the fact that, from the wife's point of view, Mr. Jones never had the right or the authority to make such a decision in the first place. In her eyes, the very fact that Mr. Jones merely accepted the authority to review her decisions about her children, against her will, is sufficient grounds for considering the decision a usurpation of power -- and, in making this point, she is absolutely right.
The moment the American courts decided that they had the authority to review how the Boy Scouts should operate their own institutions, from that moment on the courts had placed themselves in the position of having the final say so over how the Boy Scouts could operate, thereby flinging the door wide open for future meddling and interference. So what if they take the side of the Boy Scouts this time? Next time they could just as easily take the other side. In short, once the principle has been established that the courts have a right to decide other people's problems, then the people whose problems are being decided have forfeited their fundamental right to work out their differences without fear of the intervention of a third party possessed of virtually unlimited power to compel obedience.
So, yes, it is possible to have too much respect for the law. Indeed, it is tempting to go further and to elicit from this bizarre paradox a more fundamental truth about human societies -- every society ends by being destroyed by too much of whatever good thing it began by thinking it couldn't get enough of. Too much gold for Spain; too much military prowess for Germany; too much empire for England; too much respect for law for us?