Sunday, April 8, 2018
Why Winning Legislatively is Better Than Winning Judicially
I am reading Larence
Goldstone's Inherently Unequal: The Betrayal
of Equal Rights by the Supreme Court, 1865-1903. It is a painful reminder
of how politics influences decisions, in this case, the destruction of racial legal equality, in spite of the 14th Amendment. Hamilton's confidence in an an apolitical judiciary in Federalist 78 compares poorly
to Antifederalist Brutus' more cynical view.
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I always compare the shall-issue movement with the abortion rights movement.
ReplyDeleteThe former reformed our carry permit laws, one state at a time, over a period of 30 years. The latter pushed for a single SCOTUS decision imposed on all states, all at once.
Doing it state-by-state allows citizens of each state to see how the process has worked in other states, and allows a reasonable balance between opposing viewpoints to be discovered.
Imposing it via a SCOTUS decision simply creates opposition.
This is why I supported state legislation on homosexual marriage and opposed efforts to create it by judicial action.
The courts should not be an engine of social change.
And, thinking of Justice Taney, they should not be acting in opposition to social change as expressed in legislative acts.