“We are a better people than what these laws represent, and it is time to discard them into the ash heap of history.”
–U.S. District Judge John Jones’ decision in Whitewood v. Wolf
This quote caught my attention because it perfectly summarizes the beliefs and mindsets of the progressive vanguard of our society.
It also caught my attention because it is completely wrong.
As Francis Fukuyama points out in The Decay of American Political Institutions, (article now behind a paywall, book forthcoming later this year), Americans know little about how our version of democratic government compares to the functioning of other democratic governments. He highlights the American faith in representative democracy, and how the division of power among the independently elected legislators supposedly yields a system responsive to the people yet immune to undue influence and lobbying, in contrast to the supposed corruptibility of executives, judges, and bureaucrats.
While he makes several excellent points about the effectiveness of this system, and whether or not it is operating “as intended,” I want to focus on his observation that several significant civil rights victories were the result not of the people acting through their elected legislators, nor the result of executives or bureaucrats using their authority. Instead, these rights were litigated for, with considerable delay and at considerable expense, in response to individual grievances which had to wind their way through the federal court system, very often to the Supreme Court itself.
Gay marriage is one such issue. 11 states have legalized it through referendums or legislative votes, but 8 were forced to legalize it via court decision. 8 additional state laws have been ruled unconstitutional and are pending appeals. 40 states outlawed it as recently as within the last 20 years. Source
While the language of Judge Jones’ decision is flowery and triumphant, it is also clearly untrue; I see little evidence that the majority of Americans have “become better people” with respect to gay marriage in the last 20 years. The majority of Americans, via their most representative branch of government, continue to oppose gay marriage. It is once again only after considerable expenses and delays in courts that citizens have been granted their rights by judges, rather than by the vote and support of their fellow citizens. Is America progressive? It appears so. Are Americans progressive? It seems rather clear that we are not.
This is not a condemnation of “activist judges.” This is not a commentary on the correctness or incorrectness of Judge Jones’ decision. It is not a statement supporting or opposing gay marriage. My purpose here is to point out that Americans’ civil rights are continuing to be advanced despite American voters and the will of the people. While I don’t feel like digging into Moldbug and linking chapter-and-verse tonight, I must mention that this is clearly an instance of public policy trumping politics, or that of the experts ruling the people, something which doesn’t bode well for the future of our democracy.