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"History will be kind to me, for I intend to write it."-Winston S. Churchill

"The wandering scholars were bound by no lasting loyalties, were attached by no sentiment of patriotism to the states they served and were not restricted by any feeling of ancient chivalry. They proposed and carried out schemes of the blackest treachery."-C.P. Fitzgerald.

Thursday, February 05, 2004

Jonah Goldberg 

...has a superb article up in today's NRO about the contention that America is more divided today than it has ever been. In this biting essay, filled to the brim with proper historical perspective, is a solid rebuttal of the contention of the Democratic assertion that Bush has necessarily divided America any more than it is.

A good, solid piece of conservative journalism. Well done, Jonah.

Meantime, I've had correspondence with Andrew Sullivan about the Massachusetts Supreme Court's assertion of a right to same-sex marriage in the Commonwealth's Constitution. About gay marriage I couldn't care less. About state's rights and the primacy of the legislature in lawmaking, I have a supreme interest. Sullivan appears to say (in his letter to me, anyway) that, as "Separate but Equal" was struck down in Brown v. Board of Education, I should have no problem with the Massachusetts' courts action, as it was merely interpreting the law.

My problem with Sullivan's reasoning lies in the subsequent conduct of the Court, about which I will discuss further on. Brown, as every man and boy, woman, transgendered, and gender neutral individual in Multicultural America understands, was the decision that overturned Plessy v. Ferguson, the McKinley-era decision that gave color of authority to Jim Crow. Now then, it is important to understand that a properly restrained Court in 1954 did not outlaw segregation. "Separate but Equal" may have been struck down, but it was not until the Congress spoke in 1964 that de jure segregation was outlawed in this country. That's right; Martin Luther King and Thurgood Marshall did not attempt to have the court force the Congress or any other entity to impose Brown as the law of the land. Instead, they wisely made a large coalition in the Congress and in the nation that led, inexorably, to the passage of the Civil Rights Act of 1964.

In choosing the hard path, King, Marshall and their allies made a consensus on Civil Rights much more enduring. Condoleezza Rice remembers that when she walked into a formerly "whites only" restaurant with her parents in Birmingham the day after Lyndon Johnson signed the bill into Law, the patrons looked up, stared for a moment, then went back to what they were eating. The South of Gone With the Wind had passed into History.

The contrast with Roe v. Wade, for instance, cannot be more stark. Roe was a decision that imposed the Court's view on abortion on the nation at the point of a bayonet. Only because we are law-abiding folk did the people automatically follow the Court's ruling. But it was a mistake that was beyond anyone's understanding in those days. Abortion was culturally accepted in the Seventies (I knew a girl who had one; she had been knocked up by her boyfriend and decided to terminate the pregnancy). But it was not accepted by traditional America. There was no attempt to come to a consensus on that issue. It was imposed from a court that had ruled in favor of the liberal interest groups that had brought the case from Texas to Washington. Those interest groups looked on their opponents not as fellow Americans, but as hypocritical rubes from the NASCAR circuit about which a reasonable discussion could not take place. It was a mistake.

I cite Roe because what the gay community is doing is to go against what I call the Constitutional Chain of Being. Naturally, I shamelessly ripped this off from Shakespeare's Histories and Tragedies. When the King is killed in Macbeth, the "chain of being" is broken by an act of regicide. All sorts of things begin to happen in the Heavens and the Earth that lead, eventually, to the death of virtually the entire cast. Polonius, the new Caesar, walks in to reestablish order. In Western societies, the issues are supposed to be fought out in Parliament by the people's deputies. When that is done, the issue is decided and is considered closed until someone in the Legislature convinces enough people to bring it up again. No one can say that the issue has not been decided by the people's representatives! The Chain of Being is held together. When this does not occur, as in Roe, the issue remains unsettled. March for Life still draws hundreds of thousands of people because a growing number of people don't accept Roe as settled law. They see it as an act of judicial fiat that has led to the executions of millions of unborn children.

I would argue that as a result of judicial fiat, the issue remains as corrosive to the body politic as it was in Jimmy Carter's time. And that is happening again in Massachusetts. Gay advocacy groups have chosen to use the Massachusetts Court to impose a new opinion on the citizens of that state. There was no attempt to go to the legislature and seek a consensus, nor was there an attempt to persuade the public on Civil Rights and Individual Liberties grounds. In their latest stunt, the majority on the Court has chosen, in an opinion, to dictate to the State Legislature a timeline for a mandatory passage of a new law codifying the Court's decision. Sullivan justifies their action thus:

I don't believe people's basic civil rights should be up to a majority vote. That's why we have courts at all - to check majority tyranny. (When was the last time you heard a conservative worry about democratic tyranny?) I do believe in the process of debate, winning over the public, and doing this legislatively if at all possible - because it makes the reform more stable.


The end does tend to justify the means here just a bit, one might think. We have courts to adjudicate cases criminal and civil and to interpret the laws as they are written by the legislature. They were not created, as courts, to protect a minority from tyranny. The fact that minority rights tend to be protected in this country is a happy consequence of the larger issue of the protection of individual rights, not the other way around.

Sullivan would much rather go through the legislature, as he correctly understands that such a reform would be not only more "stable", but also much more accepted by the voters. But, if he can't get what he wants through the legislature, then he has no problem imposing his opinion by judicial diktat at bayonet point.

Andrew Sullivan's problem, it seems to me, is that he automatically asserts that gay marriage is a basic civil right and that should settle the issue. Now there may be no problem with that assertion, but it is an assertion, not a law. Unfortunately, there are tens of millions of people in this country who disagree with him (For the record, I'm not one of them, although I am partial to civil unions as opposed to "gay marriage". My brother is gay, out, and is in a long term relationship with another man. This colors my thinking somewhat, but not on the issue of the Constitutional order.). Just because Sullivan cannot convince them of the rightness of his cause does not relieve him of the obligation of going to the legislature and risking the judgment of the electorate.

Please, Andrew. That's the hard road, but it is the better road.


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