The Courts and Democracy

THE COURTS AND DEMOCRACY….Nathan Newman has an interesting post up explaining why liberals should quit turning to the courts for support of their social views: because it doesn’t work. Take separation of church and state, for example:

Secularism increased in strength democratically in the United States throughout this century until the 1960s. But the Supreme Court decisions on religion and then abortion became a populist rallying cry for the building of the religious right in the 1970s, 1980s and 1990s. Instead of having to rhetorically attack their fellow citizens for secular changes in law, the religious right could blame these legal changes on a malevolent “elite”, centered in the Supreme Court, that was attacking their way of life.

This is a common argument and, I’ve long thought, an interesting one. I’m not sure I entirely agree with it on either historical or social grounds, but it’s certainly food for thought.

As it happens, though, my biggest problem with this argument has always been technical. I happen to think that liberals have basically won the church-state argument, and all that’s left is fighting over scraps that aren’t worth it. It just feeds the religious right’s feeling of righteous besiegement while gaining almost nothing in practical terms. Who really cares if Roy Moore plops a Ten Commandments monument in front of his courthouse?

Still, even though I feel that way personally, someone is going to take this kind of stuff to court. There’s just no way to stop it. And if I were a judge, what choice would I have then? The damn thing is pretty clearly unconstitutional whether it offends me personally or not. Ditto for Intelligent Design, which any honest judge would conclude after only cursory research is nothing more than creationism with a pretty face.

In the end, then, even though I agree with Nathan that some of the fringe issues being litigated today are probably counterproductive for liberals (though I’m less sure I agree with him about some of the core rulings of the 60s), I’m still not sure where this leaves us. What’s the next step?