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Thursday, February 26, 2004

Comment on Judicial activism and democracy

This is not an original thought, but I am always slightly taken aback by how inflamed abortion and gay marriage get in the US. I have come to the conclusion that a great deal of this is because of the way these issues are prosecuted, through the Courts.

As I understand it there is nothing final about a Supreme Court ruling. They can be, and sometimes are, reversed. And it depends entirely on the nine men and women that make up the court. That is an incredibly small number of people effectively pronouncing on these important matters, probably basing their decisions on concepts and ideas that most of the nation simply cannot understand. Moreover, there is a sense of dis-empowerment. One can always lobby one's representatives in Congress, campaign to get people who share similar views elected. There is no such democratic element to judicial decisions.

Another problem in democratically governing a big country, in terms of population, is that the minorites get too big. There is no really alternative to having a majority decision go through, but when minorites are large and/or grouped very much in one place democracy starts to run into problems. Think about it a moment. 90% of people in Tennessee, Kentucky, and Missouri (to pick three states at random) believe in one thing, but overall in the US only 40% or so do, you have a problem. Which is one reason why the States are such a great idea. They bring things down to the more local level. It is also why I think big government in any large population, but especially large-population geographically big democracies is inherently dangerous.

If abortion, or gay marriage, were fought through the court legislatures there would still be a great deal of heat. These are emotive issues after all for all concerned. But at least then the people, on both sides, would be democratically empowered. I am pretty sure one reason why these issues simply don't raise as much comment over here is that changes are legislated. The constitutional amendment is simply the logical progression of Roe v Wade. But it is easy to try and claim constituional rights and convince a few judges of your position that try to convince your fellow human beings. That is at least one other reason why there remains great tension - the two sides don't speak to each other because the courts disempower them. So they spew rhetoric without trying to come to agreement, because they "know" they don't have the capability to make agreement.

It is traditional wisdom that the easy option is rarely the best choice. But alas, we humans are, if nothing else, imperfect. The easy option holds such allure.

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