The Period of the Judges

This old post could use updating from more recent Supreme Court decisions.

The Bible summarizes the period of the judges, after the death of Joshua, with an indictment of lawlessness, “every man did what was right in his own eyes.” (Judges 17:6 and 21:25) God, in His mercy, raised up judges both to deliver the nation from oppressors and to remind them of the covenant—to call the people back to the rule of law.

I generally dislike parallels drawn between the U.S. and OT Israel. However, I am shocked by the contrast between our period of judges and the biblical one. Our Supreme Court judges seem intent on undermining the rule of law in favor of an absolute right of autonomous liberty.

The most shocking thing about the majority opinion in Lawrence v. Texas is not that it overturned Texas’s anti-sodomy laws but its basis for doing so. The court based its decision on the due process clause of the 14th amendment, “nor shall any State deprive any person of life, liberty, or property, without due process of law.” But its reasoning is absurd. Under “substantive due process” any law that abridges fundamental rights violates the due process clause. It is not a question of legal procedure or fair application of law; it is a question of the content of the law. A law that abridges a fundamental human right violates “due process” and is inherently unconstitutional. (Liberty consists in the free exercise of fundamental rights. The right to privacy — read “abortion” — is such a constituent element of liberty.) But with Lawrence v. Texas, the court introduced absurd tautological thinking: one of the constituent rights of liberty, they say, is the right to liberty. We have an absolute right to liberty that cannot be abridged, limited, or constrained. No law can restrict my freedom – even as I choose to define it for myself. Since the purpose of law is to constrain behavior in some way, and constraint is unconstitutional, there is no longer any role for law in human society.

Note Justice Stevens’ statement from Planned Parenthood v. Casey, quoted by Justice Kennedy in the majority opinion of Lawrence v. Texas.

“These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” Ibid.

Justice Stevens (quoted by Kennedy in majority opinion)

Although our first impression is that this is a judge getting carried away with his own poetic language once we realize it is meant to ground the findings of the Supreme Court we have to become intensely concerned. Either it means nothing and shows the vacuity of the court’s reasoning, or there is no longer any place for law. Antonin Scalia gets it (Thank God for Antonin Scalia.)

“And if the Court is referring not to the holding of Casey, but to the dictum of its famed sweet-mystery-of-life passage, ante, at 13 (“‘At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life’”): That “casts some doubt” upon either the totality of our jurisprudence or else (presumably the right answer) nothing at all. I have never heard of a law that attempted to restrict one’s “right to define” certain concepts; and if the passage calls into question the government’s power to regulate actions based on one’s self-defined “concept of existence, etc.,” it is the passage that ate the rule of law. “

Antonin Scalia (dissenting opinion)

Obviously, Supreme Court justices would not explicitly dismiss the rule of law; however, Lawrence v. Texas proves that this Supreme Court is much too comfortable with an extreme subjectivism under the guise of the defense of private human rights. They ultimately substitute their own opinions about morality for law. Ironically, no one saw this more clearly than Alexander Hamilton in his defense of the Constitution in the Federalist Papers, “a dangerous ambition more often lurks behind the specious mask of zeal for the rights of people than under the forbidding appearance of zeal for the firmness and efficiency of government. History will teach us that the former has been found a much more certain road to the introduction of despotism than the latter, and that of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people, commencing demagogues and ending tyrants.” (Federalist No. 1)

The biblical judges recalled law and liberated the people; our judges assert autonomous liberty and will ultimately substitute their own will for law.

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