Change, Courts & Legislatures

Earlier on my site I noted a theory by Mark Tushnet, a lefty-law professor at Georgetown University (and Eve's Dad), where he seems to side with Bork, Graglia and the hard right, arguing that judicial review should be abolished and questions of ultimate constitutionality should be left with legislatures. But, ironically, he argues that this move would be good for the progressive left's political interests.

Tushnet's stance flies in the face of the commonly accepted wisdom of the hard right that it is the courts who are the agents of the Left's policies, and of cultural change.

Another distinguished lefty-law professor, Columbia's Jeremy Waldron, more or less supports Tushnet's point of view. He notes that in many other Western nations (most?) such controversial policy issues -- the cultural issues and the more liberal stance that Western nations have taken towards them in modern history -- have been decided by legislatures.

The British legalized abortion, prostitution, and homosexuality and abolished capital punishment, all by legislation, all without the assistance of the judiciary -- or sometimes over its expressed opposition -- in the 1960s.

I think what we need to keep in mind is, despite our differences on which we tend to overly focus, America is a Western nation and Western nations are all specifically different forms of the generic liberal democracy. It's not the courts that have come in hand-in-hand with the ACLU and foisted some subversive cultural agenda on America. Rather the cultural changes that have occurred in America in recent modernity -- things like abortion, homosexuality, sexual permissiveness, the end of racial privileges, gender equality -- are really just part and parcel of a larger pattern that we see running throughout all Western nations generally.

And in many of these nations, the legislatures (what the social cons love to refer to as "the will of the people") have gladly been the final arbiters in favor of such change. There is a myth among such members of the right that if we abolished judicial review and left everything up to the legislatures, we could take America back to the days of Leave it to Beaver. I don't think so.

Culturally and geographically, which nation is closest to the US? Why Canada. And gay marriage is coming to Canada, nationally. How did that happen? Well, it wasn't through a court decision. Now don't get me wrong. I have no problem with courts, through judicial review, striking down acts of legislatures in order to protect minority liberty and equality interests. I'm simply writing this to refute what I see as the ridiculous notion that the courts are to blame for delivering to us a culturally liberal social policy.