Gay marriage, pot smoking, gun control--let the people, not the Supreme Court decide

Maybe the U.S. Supreme Court should decide how to keep us from falling off the fiscal cliff.

That’s hyperbole.

But not by much. After all, isn’t the Supreme Court the final word of the land? Supreme even in matters that should be settled by a political process called democracy? In such matters as gun control, gay marriage and recreational marijuana?

Americans have strong opinions on these matters and they repeatedly have expressed themselves through their representatives or in referendums. Yet, the Supreme Court will settle these issues, never mind the public. In that, a nine-person oligarchy governs Americans.

Take same-sex marriage. In 2008, California voters approved Proposition 8, a ban on same-sex marriages. The people have spoken, right? Actually, it doesn’t count until the justices can get their hands on it. So, off it goes to the U.S. Supreme Court for the final word.

Meanwhile, voters in Maine, Maryland and Washington last month approved same-sex marriage. In May, North Carolina approved a state constitutional amendment barring same-sex marriage.

Oh dear, what is a Supreme Court to do?

Or take gun control. The court declared that Chicago can’t prohibit residents from keeping a gun in their homes for self-defense. Now a federal appeals court in Chicago has extended the self-defense reasoning to strike down an Illinois law against carrying a concealed weapon outside the home. That probably will end up in the high court, too.

The recreational use of marijuana involves a constitutional question about the 10th Amendment: Federal law forbids it and the voters of Washington and Colorado approved it last month by popular vote. Hello, Supreme Court.

So, I ask, when is the popular voice of the people supreme, even more so than the Supreme Court’s? The 10th Amendment reserves the powers the Constitution doesn’t delegate to the federal government (including the Supreme Court) “to the states respectively, or to the people.” That’s the people, not the Supreme Court.

By tradition and its own declaration, the Supreme Court reserves to itself the power to decide what is constitutional. For example, it can step in when a case is about fundamental (i.e. God-given) rights that cannot be abridged even by popular vote. For example, the court’s 1954 Brown v. Board of Education decision struck down state laws establishing separate schools for white and black students. That reversed an 1896 ruling affirming that “separate but equal” did not violate the Constitution’s “equal protection” clause as long as the public facilities were equal. Every person is equal before the law, the court said, making it a bastion against government denial of equal rights.

But if not for the Supreme Court, would official racial segregation have continued? Give the court credit for helping to kick-start the civil rights movement. But America was already changing in the ’50s. The court’s ruling would eventually — albeit incrementally — reflect the viewpoint of a majority of Americans.

Just so, popular opinion now is shifting in favor of same-sex marriage and recreational marijuana use. Popular support for stricter gun control may likewise grow after the Sandy Hook Elementary School slaughter. We can differ on those issues, but shouldn’t the people have some say?

Conservatives are decidedly against those positions, and some are hoping that the court will come down on their side. But neither side can have it both ways, hoping that the court supports their own position and to heck with popular opinion.

Liberals were thrilled with the 1973 Roe v. Wade and Doe v. Bolton decisions that legalized abortion on demand. But with those rulings the Supreme Court wrongly stopped the public from crafting a democratic, moderate abortion policy such as the separate states had been doing on their own. Shouldn’t people have the right to establish public policies that reflect their own state and regional differences?

Both sides need to be careful for what they wish. They are stuck with a “wrongfully” decided decision until the court determines otherwise or a constitutional amendment is passed. Meanwhile, without any public input for a compromise, we harvest endless years of bitterness and divisiveness.

Political issues — which hundreds of kinds of guns should be legal, what dope we can smoke and the definition of marriage — should be left in the voters’ hands when possible. Would that the justices agree to do that more often.

This column also appeared in the Chicago Tribune.



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    But if not for the Supreme Court, would official racial segregation have continued? Give the court credit for helping to kick-start the civil rights movement. But America was already changing in the '50s.
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  • I thought I addressed this in the column. But it's a good question: is the court's job to initiate or follow public opinion? I think that it eventually does, ratifying if not popular opinion, but the direction that popular opinion is taking. The issue, as I mentioned, is when the court takes fundamental issues on which there is a wide diversity of public opinion and permanently takes it out of the political process. Such is the dilemma of a democracy that wishes the people to govern yet, at the same time, wishes to protect basic human and civil rights.

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