Vital Signs

Democracy and God

Since at least the 1960’s, federal judges in the United States have overturned a number of state and federal laws dealing, broadly speaking, with marriage, sexuality, and the family—most notoriously in the 1973 Roe v. Wade decision on abortion.  And numerous commentators have pointed out the constitutional absurdity of these decisions, based on no clear text of the written Constitution but on “penumbras, formed by emanations from [the Bill of Rights],” as Justice William Douglas called them in the 1965 Griswold opinion invalidating Connecticut’s anticontraception statute.  Of course, the reason those opposed to such remnants of Christian morality have resorted to the judiciary in order to gain their ends is that rarely, if ever, would they be able to get their measures enacted by an honest appeal to voters.  The current debate on same-sex “marriage” is another case in point.  Neither in Hawaii nor in Massachusetts—two very liberal states—would a majority of voters ever approve same-sex “marriage” in the foreseeable future.  So what we have in such cases are nothing but examples of “raw judicial power,” as Justice Byron White termed it in his dissent in Roe v. Wade.

Unfortunately, however, many of these critics and commentators who quite rightly point up these instances of judicial usurpation...

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