SSM AND CONSTITUTIONAL LAW: Matt Taylor replies to Ben Bateman

Ben Bateman writes: "Most of those who support SSM like the idea that a constitution is an amorphous super-law that trumps the will of the people and that can only be understood by liberal judges. On this view, constitutional issues are the ones that are so important that the hoi polloi can't be trusted with them."

Sadly, this statement is correct. Could it be that liberals support judical power only because the current batch of judges tend toward liberal views, and that conservatives oppose judicial power for the same reason? It would be interesting to see how liberals and conservatives alike would react if the shoe were on the other foot. What if, for example, an "activist" conservative judge ruled that abortion is capital murder (since unborn babies are entitled to constitutional equal protection)?

The current state of SSM, abortion, and other "social issue" controversies shows that our system of government is in need of repair. American democracy is not well-equipped to answer fundamental questions of law to the satisfaction of its citizens, perhaps because our system of checks and balances has not kept pace with the social changes of the last 200+ years. In the more socially stable era of the founders, it was possible to craft broad constitutional principles with a clear understanding of their ramifications, thus it made sense to give courts the last word in the fairly straightforward task of constitutional interpretation. This is no longer the case.

Today, the social landscape is changing so quickly that the law is frequently confronted with problems never envisioned by its authors. In these cases, no obvious resolution is offered in existing law -- any conclusive decision requires courts to go beyond mere interpretation, and is therefore an act of policy-making. No wonder that judges appear to be "legislating from the bench"; they are in a catch-22, forced to interpet the law's intention in unforseen situations where the law had no intention at all.

One solution is to give the people, or their elected representatives, a direct voice in resolving cases that challenge the assumptions implicit in law. Not all cases brought to court need this kind of intervention, probably only a very tiny minority, and such decisions should require large supermajorities, so that legitimate minority interests cannot be trampled by a malicious majority. We do have two such instruments already, constitutional amendments (or conventions) and judicial impeachment, but both are too unwieldy to resolve difficult cases in a practical, timely manner. We need a more flexible, streamlined process by which cases of fundamental importance can be decided democratically.
posted by Eve at 3:34 PM | link

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