Don't be Surprised if Nobody Buys It

The link above is CNN's report about the same-sex marriage amendment failing in the Senate. The topic of gay marriage is one for another day. What bothers me most about this article is Senator Frist’s rhetorical question: “Will activist judges not elected by the American people destroy the institution of marriage, or will the people protect marriage as the best way to raise children?” There’s so much wrong with this statement coming from an elected national leader that I don’t know where to start.

Okay, now that I’ve thought about it, I’ll start with the term “activist judges.” In theory, this term refers to jurists who “make their own law,” rather that following the law of the state, or of the country. Of course, as a practical matter the term means “a judge who interprets a law differently than from how I think it should be construed.” No judge can make up the rules. They have to follow the boundaries established by the law. Further, there are appellate procedures in place for when judicial errors occur. Even if you believe that a judicial ruling at the highest level (the state or Federal Supreme Court) is in error, one always has the opportunity to change the law – as here, with the same-sex marriage amendment. If enough elected officials had felt passionately about the topic and the Massachusetts Supreme Court ruling, then further consideration would have been mandated. The U.S. Constitution and State Constitutions set up a free-market economy for ideas. If you don’t like the offered product, you’re welcome to promote your own. But don’t be surprised if nobody buys it.

Further irritating me is Frist’s reference to the judges “not elected by the American people” as though a) there’s no benefit to a judge not being elected and b) they have taken their positions through bloody insurrections. Despite what Frist and the conservative idealogues he echoes maintain, the purpose of the judicial branch of government is NOT to act on the whims, or even on the studied will, of the majority. It is to enforce the laws written by those the majority elected. The Constitution lays forth a series of laws that we, as a country, tend to believe in when we consider them as generalities. It’s when it’s used to enforce specific propositions (prayer in school, gay marriage) that people get up in arms. A judge’s duty is to the state as an entity, not to its individual members.

This duty to codified ideas rather than to people is protected by non-elected positions. When judges are elected, they have to pander (as politicians do) to the desires of the electorate, regardless with whether those desires align with the interpretation and enforcement of law. The maintenance of a judicial appointment without repeated approval by the electorate is part of the separation of powers, Senator Frist. And until you can understand that concept and its application through the judicial system, I will continue to have a grave concern for the leadership of our country in EVERY branch.