Friday, March 17, 2006

The Role and Judges and Voters

The Boston Globe reports that in a recent speech to a law school audience, Justice Scalia:

…railed against the era of the "judge-moralist," saying judges are no better qualified than "Joe Sixpack" to decide moral questions such as abortion and gay marriage…

“Anyone who thinks the country's most prominent lawyers reflect the views of the people needs a reality check…"

He is absolutely right. Within our system, it is emphatically the province and duty of the judiciary to say what the law is, not what it should be (to borrow from the Federalist Society). To be certain, a group of robed-braniacs has absolutely no authority (moral or otherwise) to decide how we should live our individual lives. The Constitution does not provide for it, and natural law, the philosophical foundation of our system, completely precludes it. Unfortunately, Nino, like many conservatives, tends to stray from this foundation to sanction “political” decision-making, via democratic principles, when confronted with questions of personal, moral and individual behavior. Indeed, Scalia is famous for proclaiming that the “public,” as opposed to judges, should decide the outcome of the culture wars. I respectfully dissent. For the same reason that judges should not make lifestyle decisions concerning you and me, Danny Democrat and Robbie Republican, bumbling around the ballot box, should not either. Lockean principles hold that the government may only exercise those powers delegated to it by men as those men voluntarily surrender their personal rights as they leave the state of nature and enter civil society. Just as I have no right, as an individual qua individual, to tell my neighbor how to live his life, the collective cannot use their votes to tell me how to live mine. For some unknown reason, Scalia and the democratic-moralists tend to ignore this obvious truth. Too bad.