Wolf glare

Wolf glare

Sunday, July 12, 2015

Justice is process, NOT outcome


"And when a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean. When such a method of interpretation of the Constitution obtains, in place of a republican Government, with limited and defined powers, we have a Government which is merely an exponent of the will of Congress; or what, in my opinion, would not be preferable, an exponent of the individual political opinions of the members of this court."  Dred Scott v. Sandford, 19 How. 393 (1857) Justice Curtis, dissenting at p. 621.

I am finally getting around to reading the US Supreme Court's decision finding that states cannot bar same sex marriages.  Although I personally have no opposition to same sex marriage, I find myself in the rare position of being in agreement with Justices Scalia (and Roberts and Thomas), in their dissent.  It is not the outcome that we should ever focus on in judicial decisions, but the process by which the Court obtained that outcome.  The majority's reasoning, no matter how well intentioned,  undermines the principles of democracy and States' rights that are fundamental to the fabric of this nation.  Worse, it sets a precedent at the highest level of our justice system that judicial advocacy is a legitimate part of the process.   This decision strikes a blow to all of us, regardless of sexual orientation or identity, not because it's "wrong" but because the decision was obtained through a process that has never been - and can never be - part of our democratic process.

Justice Roberts:  The need for restraint in administering the strong medicine of substantive due process is a lesson this Court has learned the hard way. The Court first applied substantive due process to strike down a statute in Dred Scott v. Sandford, 19 How. 393 (1857). There the Court invalidated the Missouri Compromise on the ground that legislation restricting the institution of slavery violated the implied rights of slaveholders. The Court relied on its own conception of liberty and property in doing so. It asserted that "an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States . . . could hardly be dignified with the name of due process of law." Id., at 450. In a dissent that has outlasted the majority opinion, Justice Curtis explained that when the "fixed rules which govern the interpretation of laws [are] abandoned, and the theoretical opinions of individuals are allowed to control" the Constitution's meaning, "we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean."

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