Violating the social compact
Hot on the heels (if you'll pardon the pun) of the NJSC ruling vis a vis gay marriage, uber-blogger Stephen Den Beste has some thoughts about law and the social compact
Violating the social compact
He makes the case for his argument by citing Roe as a horrible means of making the right decision. He agrees with the ruling but not the way it was forced upon the plebiscite without their voice. A very dangerous thing to do. Previously, we've had civil wars over such matters. Had the slaves been emancipated by the electorate as in England, we wouldn't have suffered a devastating civil war that set us back generations in both economic and social measures.
The South would not have been so poor and backward for so many years. Indeed, it's likely they would have been more powerful than the North had Sherman not made his infamous march to the sea.
Forcing a decision on the populace by judicial fiat should be avoided whenever possible.
As to the issue of equality under the law, he deals with that in the comments and explains the difference between a equality under the law and disparate impact under the law. A key difference.
In addition, before you trot out the Civil Rights cases, Den Beste argues that the court was merely ruling to reflect public opinion. That is, the civil rights workers had already won the battle for equal treatment and the courts were simply acknowledging that the de facto changes were now de jure.
Violating the social compact
Irrespective of the merits of individual decisions, the basic problem with this is that it cheats the electorate by forbidding them from participating in the process of collectively making those decisions. And the "losers" don't concede defeat, because they never got their chance to participate in the decision.
He makes the case for his argument by citing Roe as a horrible means of making the right decision. He agrees with the ruling but not the way it was forced upon the plebiscite without their voice. A very dangerous thing to do. Previously, we've had civil wars over such matters. Had the slaves been emancipated by the electorate as in England, we wouldn't have suffered a devastating civil war that set us back generations in both economic and social measures.
The South would not have been so poor and backward for so many years. Indeed, it's likely they would have been more powerful than the North had Sherman not made his infamous march to the sea.
Forcing a decision on the populace by judicial fiat should be avoided whenever possible.
As to the issue of equality under the law, he deals with that in the comments and explains the difference between a equality under the law and disparate impact under the law. A key difference.
In addition, before you trot out the Civil Rights cases, Den Beste argues that the court was merely ruling to reflect public opinion. That is, the civil rights workers had already won the battle for equal treatment and the courts were simply acknowledging that the de facto changes were now de jure.
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