Mark, you and Paul Mirengoff are exactly right to bemoan the absurdity of a system in which what Paul describes as “nine glorified lawyers” get to define the meaning of an ancient institution that is the fundamental building block of society. I’ve dealt with this in the context of national defense’s judicialization, which is similar: It shapes a fundamental aspect of sovereignty; it involves principles and customs many centuries older than the United States; and, therefore, it amounts to a transfer of the body politic’s core decision-making from politically accountable officials to the branch of government insulated from politics — a self-defeating result for a people that fancies itself free and self-determining.
Although this is the system we have, it is not the system we were started with. For the most part, the Constitution makes Congress the master of the jurisdiction of the federal courts; indeed, there would not be district and appellate federal courts (other than the Supreme Court) except for Congress’s establishment of them. Congress could enact a law tomorrow that removed the power of the federal courts to rule on questions concerning marriage. Such a statute would be consistent with assurances by proponents of the Constitution’s adoption that, as Madison put it:
The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.
During the primary season, Newt Gingrich tried to make judicial overreach a campaign issue. He offered a number of proposals that didn’t get the attention they deserved — in part because some of his ideas were unsound, as I said at the time. The better proposals were geared toward encouraging Congress to use its constitutional authority to rein in the judges — not because lawmakers are smarter than judges but because (a) they are accountable to voters and (b) when they get things wrong, it is easier to amend or repeal a bad statute than it is to undo a bad court ruling. A Congress that used its power to limit the subject-matter jurisdiction of the courts would free us from dependence on which side of bed the swing justices arose from on that day. (I say “swing justices” — plural — because the Obamacare decision illustrates that Justice Kennedy is not alone.)
Sadly, the chance that great public questions will be removed from judicial resolution is vanishingly small — witness how Newt was savaged for daring to suggest it. In part, this is because judges can be willful. As I noted in writing about Newt’s proposals, courts have ignored occasional congressional efforts to limit their jurisdiction, and the political branches have acquiesced in these power grabs. But I daresay Congress, more than the courts, is where the problem chiefly lies. Lawmakers often do not want to be accountable for hard decisions. Moreover, because the legal community is more leftist than the public, progressive lawmakers often realize their agenda is better advanced by steering issues to the courts (e.g., by writing ambiguous or otherwise sloppy laws) — judicial gloss may result in law that leans more to the left than anything the lawmaker could have gotten passed. The bigger Leviathan gets, the safer the incumbents get, the less engaged the public is, the more incentive lawmakers and presidents have to pass the buck.
For the most part, decisions the courts have no business making for us wind up in the judges’ laps because we choose not to avail ourselves, through our political representatives, of the power to govern — power that is there for the taking. In this, as in so may other things, we’ve grown content to be dependents.