If we had a country governed by the rule of law, where legislatures respected individual rights and did not pass edicts and regulations that violate our unalienable rights to life, liberty and pursuit of happiness, then all the bellyaching about “judge-made laws” would make sense.
Sadly, however, it is too late to complain about that. Republicans and Democrats are well past the point of being able to consistently and reasonably demand that the country be governed according to the process whereby legislatures make good, sound, just laws and the courts make sure of this in their review process.
No, what we have now is near-anarchy as far as lawmaking is concerned. Indeed, most of what are passed by legislatures or declared to be valid by courts are not really laws at all, but just the will of some segment of the country imposed on the rest. Sometimes the will of such a segment gets into the books by way of legislation, sometimes by way of adjudication, but there is no effort at all, with all this talk of “a living constitution,” to follow the rule of law by respecting individual rights.
Both major political parties abandoned that standard a long time ago, when they decided they can make laws just because a lot of their constituents want something or because they think the Constitution should contain some provision it does not in fact contain.
The result is only a faintest resemblance to the idea that there exists a system of the law of the land that applies to everyone, and the legislative and judicial process stick to extending and clarifying such a system.
Now consider the gay marriage issue. To begin with, in a free society, legislatures and courts should have nothing to do with marriage. That is what cultures, churches and associations – such as the Amish, the Moonies, the Mormons – are supposed to deal with.
Courts in a free society should worry about whether the Constitution is being obeyed in terms of laying out our rights and limiting the powers of government. The courts and legislature aren’t in place to define various social and religious institutions, including what is a marriage.
In response to this, we have Republican speech writer Lisa Schiffren saying, in a recent New York Times op-ed piece, that “many Republicans who hold traditional views of marriage are asking whether it is really worth the enormous effort required to enact an amendment. The answer must be yes. Marriage, defined as one man and one woman, has been a foundation of our culture for millenniums.”
But this is a blatant non-sequitur – the conclusion doesn’t follow, by a long shot. Even if it were true that marriage, “defined as one man and one woman,” were “a foundation of our culture for millenniums,” it would by no means follow that it must be made part of the Constitution. “Fatherhood,” “friendship,” “teacher,” “the arts” and innumerable other concepts are also features of “our culture,” yet they aren’t given definitions in the fundamental legal document of the land.
Moreover, there isn’t an “our culture” to speak of in the melting pot that is the United States. What makes this a distinctive country is not that we have a common culture, but that we have a common system of justice. That is exactly why so many millions from different cultures are capable of living together here, because none of them must surrender the bulk of their culture in order to be Americans, only those elements of it that violate our system of justice.
Gay marriages do no one injustice. They may well be a valid extension of a venerable institution, somewhat analogous to how “fatherhood” was extended with the emergence of adoptions, “child” with the emergence of artificial insemination and many other institutions as human communities underwent alterations.
In a free country this is taken care of mostly within the private sector, in voluntary but separate groups, with the law merely registering some of the features of the institutions so as to protect promises made by people to one another.
Those who are concerned about how these institutions are reshaped, if at all, need to get into the discussion and try to exert influence, not turn to legislatures or judges for help.
Tibor Machan advises Freedom Communications, parent company of this newspaper. E-mail him at: