A writer named Paul Cella has an article up on Claremont’s website complaining about gay marriage. Nothing new in that, of course, but it makes a few strange points, if you can cut through the classic conservative writing style (a style I know all too well; I had it when I was 16, after I read Happy Days Were Here Again).
The author begins by spending 683 words saying that the voting pattern in the last election reveals that most Americans, regardless of party, oppose legalizing gay marriage. He then continues in his self-parodying style to say that this “point[s] to something larger, for we have yet to really consider the decisive factor in this; the factor which elevates this discussion from the nitty-gritty of politics (where, I say again, all political discourse must begin: not for nothing did Socrates simply walk about the city and interrogate various Athenians) to the supreme heights of political philosophy.” Okay, the decisive factor in this; And that factor is?
Wait for it….
Judicial activism! Ah, what else? Those damn unelected judges are telling us how to run our lives and this is awful, yadda yadda—the same thing many bloggers have refuted time and again. This alleged activism has, “by opening it up to existential examination”—and what other types of examination are there? Well, I suppose Straussians might know of others—caused us to reconsider “the very thing which was so precious that Lincoln mournfully led the nation into a bloody war of brother against brother to preserve, that it ‘shall not perish from this earth.’” If we were to rephrase this in a way that does not take, by my count, 457 words, it would be: the recent judicial decisions invalidating prohibitions on gay marriage have brought a great deal of national attention to the issue of “judicial activism.” See how easy that is, Mr. Cella? And no gratuitous references to Socrates!
This is nothing more than the standard conservative style—cotton candy of the mind—but what struck me was the following passage. Before we get to it, though, keep in mind the argument of many defenders of gay marriage, including myself: we say that legal prohibitions of gay marriage are no more or less valid than laws which, for centuries, prohibited interracial marriage. Just as the Court was right to hold that these laws violated the principle of equality—even though the authors of the Fourteenth Amendment never would have avowed a purpose to overrule antimiscegenation laws—we believe that cases like Goodridge were rightly decided. For those who hold this view, Mr. Cella’s introductory 1,390 words are really beside the point, because antimiscegenation laws were not validated by the (undeniable) popular support they received throughout history; if the analogy holds, neither are anti-gay marriage laws. But Cella, rather than tiptoeing around this argument, pratfalls into it:
It is true, of course, that judicial despotism has reared its face to the American people before. It reared up, in a sudden stroke, on the question of abortion; and it has poisoned our politics ever since. It reared up, some twenty years before, on the question of racial integration of the public schools—but then the urgency of the question was tempered, because the philosophical question was removed from the discussion, when Congress acted properly, authenticating the deliberate sense of the community to pass into law the Civil Rights and Voting Rights Acts.
Now, that’s interesting. If I recall correctly, Brown v. Board of Education was decided in 1954, and the Civil Rights act was passed in 1964, after ten years of overwhelming national controversy and charges of rampant judicial activism; calls for Earl Warren’s impeachment; federal troops in Little Rock; et cetera, et cetera. The Voting Rights Act was another year after that. There were at least ten years there where the “deliberate sense of the community” was rather far from pro-desegregation; more, even the 1964 and ’65 acts were the result of an immense amount of political agitation and civil disobedience by people like Martin Luther King—agitation which, we remember, Ken Masugi decried in an MLK Day post that concluded that “[t]here were surely better approaches to establishing equal civil and political rights for all than the path which led from Brown v. Board of Education to the Civil Rights and Voting Rights Acts.”
In other words, according to Cella, judicial activism in the Civil Rights era was okay because, after another decade of the sort of agitation that King should not have engaged in anyway, there was finally a grudging national commitment to equality by 1964 which ratified Brown in the form of the Civil Rights Act. How, then, can Cella say that judicial activism in Goodridge and other cases is not justified? Shouldn’t he wait for ten years of civil disobedience and activism, to see if Congress ratifies that decision, too? Unfortunately, when it comes down to it, Cella’s reference to Brown is really just an attempt to avoid the issue, because he believes that (pardon me, I simply must clean this up):
self-government…[means] rule by deliberation and consent…debate…between elected representatives…[and] compromise…. It demands patience from the minority even when [the minority’s] cause is just, and magnanimity from the majority….* It depends upon consensus, and…change must come through…the legislat[ure]…. [A] minority must rely on…persuasion, and trust in the good faith of its fellows; and…a majority must respect the position of the minority, and bide its time until the minority can be carried along in acquiescence [a fine euphemism, that].
But this is just once more the appeal to the will of the majority as equal to justice—an equation which someone so intoxicated on classicism and references to Lincoln ought to know is one which Harry Jaffa has likened to the argument of Thrasymachus in the Republic. Self-government does, in part, mean debate and compromise, but only within the boundaries of legitimate political judgments. Those boundaries are set, first, by natural law, and second, by the Constitution. It is not magnanimity that requires the majority to respect the rights of the minority, but justice, and the Constitution’s plain language, which says that no state shall deprive any person within its jurisdiction of the equal protection of the laws. Not “no state shall fail to exhibit magnanimity.” And just how, pray tell, does it respect the position of the gay minority in this country to deny them the right to marry simply on the basis that they are in the minority and that your puffery about Socrates leads you to think that they’re disgusting? After slathering on such marble-cast brutishness, Mr. Cella concludes by telling this minority that they must trust in the good faith of their fellows. Yeah. That’s great coming from a group of people who put the word marry in quotation marks, and claim that homosexuals marrying would “violate a person’s natural right to marriage (by rendering it meaningless...)” and would be “the equivalent of destroying constitutional government.”
No, self-government includes the judicial authority—the power to see ahead and recognize that the majority is sometimes wrong, and to give the power to declare such instances to the judicial branch of the government, ahead of time. As I’ve explained before, there is nothing undemocratic about judicial review. (Read it, Mr. Cella—it has a fine classical allusion in it!)
Abraham Lincoln, Cella concludes, “thought deeply about the problem of self-government.” Indeed he did. But he strove to put deep thoughts into words that every person could understand, and the result was moving language from a brilliant mind that really understood that the sheet anchor of American republicanism was that no man is good enough to govern another without his consent. Paul Cella, by contrast, has put empty, tired, refuted conservative whining into gigantic pomp that gets everything about American republicanism wrong. To quote the classics, the mountains have labored, and brought forth a mouse.
*-in the original, this is rendered “magnanimity from the majority even when the [sic] political strength is preponderant.” And when is the majority’s political strength not preponderant? The redundancy of these sentences that repeat themselves bother me with their repetitiousness.
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