Saturday, November 06, 2004

Lochner, Roe, et al.

Great post, Scott. For the record, though, my use of the term "activist judges" was meant to convey the argument as conservatives would make it, not to characterize the Court from my own perspective.

Although, if I were to characterize the Court, I would say that whatever one means by "activist judges," I am as opposed to the doctrine of "substantive due process" as much in Lochner as in Griswold and Roe. I am perplexed as to how the former decision has been so maligned by the same people who consistently accept the latter two as examples of fundamental progress in our constitutional scheme. Both seem to me to be examples of judges applying their personal predilections through a dubious constitutional clause. The best explanation I can think of for the repudiation of Lochner and the embrace of Griswold and Roe is that the former overturned a government attempt to regulate the economy in a liberal way, while the latter two overturned government attempts to regulate personal behavior in a conservative way. (It's hard to even make the argument that one involved "public" areas like the economy, while the others involved a "private" sphere of liberty. Lochner, after all, involved regulations limiting the right of an individual baker to work harder, while Grisowold and Roe regulated which services doctors could perform.) I would have to agree with you that if one praises the latter decisions as upholding our constitutional scheme of liberty while while criticizing the former as the imposition of anti-New Deal old liners, then the term "activist judges" truly has no meaning outside one's personal political tastes.

On gay marriage, I think the best arguments against it have nothing to do with gays; they have to do with the effect on the attitudes that heterosexuals bring to marriage, which after all is where the majority of children are going to be conceived. Stanley Kurtz has argued that those countries that have most fully adopted gay marriage have accelerated societal trends separating marriage from its traditional role as a prerequisite for cohabitation and child-rearing. The result, he argues, is that heterosexual couples don't bother to get married, if at all, until after their second child, which creates relationships lacking the stability and commitment necessary for healthy children. He has some other good points, which I ultimately disagree with, here and here. Although I think they are wrong, I think these arguments do point to a crisis in our culture's understanding of marriage. So essentially, one could say to one's gay loved ones, I support your life-long love, but I don't trust the heterosexual masses to handle their own sexuality, with its risks of conceiving children and the potential for gender inequities, responsibly enough in a post-gay marriage society. Again, I don't hold that view, but some thoughtful conservatives do.

By the way, I believe in the early Mormon church, polygamy was an obligation, not just a right. At least if one wanted to fully please God and achieve the highest reaches of heaven.

Okay, I'll try not to be a blog hog from now on.