Calling for “massive disobedience” in response to the Supreme Court’s inaction on same-sex marriage last week, Pat Buchanan, perhaps unwittingly, gives up the game in an extended rant against “judicial dictatorship.” Unlike so many others who take the same position, he’s willing to admit that he’d say the same thing in all the other historical cases where his ideological forebears did the same. And he spews some seriously weird history along the way.
Do the states have the right to outlaw same-sex marriage?
Not long ago the question would have been seen as absurd. For every state regarded homosexual acts as crimes.
No, states do not have that right. In fact, states don’t have rights at all. Individuals have rights, governments have authorities.
But today rogue judges and justices, appointed for life, answerable to no one, instruct a once-democratic republic on what laws we may and may not enact.
Yeah, like they’ve been doing for more than 200 years now. Like the Constitution gives them the authority to do. You remember the Constitution, right? It’s that document you claim to love so much but are highly ignorant of.
The instrument of revolution is judicial review, the doctrine that makes the Supreme Court the final arbiter, the decider, of what the Constitution says, and cedes to the court limitless power to overturn laws enacted by the elective branches of government.
Jefferson said that to cede such authority to the Supreme Court “would place us under the despotism of an oligarchy.” Was he not right?…
Each branch of government, wrote Jefferson, is “independent of the others and has an equal right to decide for itself what is the meaning of the Constitution in the cases submitted to its action.”
Jefferson was an opponent of judicial review. But remember, he wasn’t there for the writing of the Constitution, he was in France. The founders who did write the Constitution saw fit to give the Supreme Court the authority to negate laws that were passed democratically because they knew that pure majoritarianism would not protect the rights of the minority. As Hamilton wrote in Federalist 78:
The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.
It does no good at all to declare that individuals have rights that inviolable, then subject those rights to the will of a simple majority.
In 1954, the Supreme Court ordered the desegregation of all public schools. But when the court began to dictate the racial balance of public schools, and order the forced busing of children based on race across cities and county lines to bring it about, a rebellion arose.
Only when resistance became national and a violent reaction began did our black-robed radicals back down.
Wait, what? Is that what happened? I seem to recall that mobs in the south committed that very “massive disobedience” in response to desegregation by blocking school entrances and keeping black children from going on, which required sending in the National Guard to prevent them from continuing to destroy the lives of those children. And guess what? Those people made the exact same argument that Buchanan is making, that “judicial dictators” were destroying their “freedom” to continue the discrimination that had gone on for so long.
And today, desegregation is viewed nearly universally except by the most backward and racist Americans as an important step forward for civil rights. Even the most conservative legal scholars no longer try to argue against it, but they continue to make the same argument against every other civil rights advance. The same is true of Loving v Virginia, of course.
They keep recycling the same arguments (tradition, judicial supremacy, etc) while pretending that they would not have made those same arguments against the previous advances in civil rights that are now almost universally accepted. But Buchanan is honest enough, and racist enough, to admit that he still thinks desegregation was a case of un-democratic “judicial dictatorship.” Hell, he’s even willing to admit that this whole “state’s rights” argument is really about refighting the civil war:
Ultimately, the failure is one of conservatism itself.
Indeed, with neoconservatives in the van, the GOP hierarchy is today in headlong retreat on same-sex marriage. Its performance calls to mind the insight of that unreconstructed Confederate chaplain to Stonewall Jackson, Robert Lewis Dabney, on the failure of conservatives to halt the march of the egalitarians:
“American conservatism is merely the shadow that follows Radicalism as it moves forward towards perdition. It remains behind it, but never retards it, and always advances near its leader. … Its impotency is not hard, indeed, to explain. It is worthless because it is the conservatism of expediency only, and not of sturdy principle. It intends to risk nothing serious, for the sake of the truth, and has no idea of being guilty of the folly of martyrdom.”
Yeah Pat, conservatives should just admit, as you’re willing to do, that they want to return to the pre-14th Amendment America, when equality was irrelevant as long as a majority of white people wanted it to be.