Strengthening Constitutional Self-Government

No Left Turns

The Supremes’ Sophistry

This is what John Leo entitles his US News commentary on the recent affirmative action and sodomy decisions. He is right. One of the worst things about all this, in my mind, is that on the major political issues of our time the US Supreme Court has pulled the plug on public conversations about some serious and fundamental political questions that--in a political order founded on consent--ought to be a matter of public conversation and deliberation. To take such issues out of the political discourse is wrong and, in the end, is very detrimental to constitutional government correctly understood. That the political elites (largely liberal, but not simply liberal) prefer that this happen is another very unhealthy thing. There continues to be a disjunction between public opinion and the rule of law (or the government, if you like) that, by definition, is corrupting in a regime of self-government. This argument holds, in my view, even if you agree with a particular decision of the Supreme Court. Among other things, this has the effect of the citizens making decisions on who they support for president, for example, be determined by who the president would appoint to the Supremes because, after all, it is the Court who will make all the important decisions. And currently, it is one member of the Court on whose decision such important matters depend: Today it is Sandra Day O’Connor, tomorrow it will be one other (unelected) person. This is not good.

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