In a recent speech by Justice Scalia in Boston, he said that judges are not more inherently qualified to judge or determine precedent on issues of morality as reflected in law, such as abortion or gay marriage, than Joe Sixpack. Should these issues be determined by judges, by legislatures, by public referendum, or not addressed by public systems at all, being left to individual choice?
I think a good case can be made that we really don't want democratically determined morals enforced by the government. Are judges the right civic vehicle to determine and regulate morality by law in the form of precedent? How many of you want Scalia or Thomas defining right and wrong, and using the FBI to enforce their positions? The idea that the process is good so long as my guys are in charge is probably a bad foundation for good government.
Are legislatures a better answer? I think these groups are too swayed by special interests and vacillating public opinion and the need to get re-elected to be good arbiters or stewards of laws enforcing our national morality. Perhaps the problem arises from our loss of individual state laws. With very few exceptions, laws in one state are the same as the next. We can no longer go to a place where the laws are the ones we like, we've lost our ability to have local laws reflect local sensibilities. Perhaps we would be better off if we reclaimed that differentiation, if Vermont could choose to support gay marriage, and New Hampshire could choose not to. Perhaps the problem is that we strive for a national morality via the federal government and federal courts, instead of leaving issues of morality at the state or local level.
