Notice that back in 1959, before even some of the current arguments about supposedly activists courts, the Virginia State Bar posted the plaque above which lauds the fact that we are a country of common law. They go even farther to say that, “since the Magna Carta the common law has been the cornerstone of individual liberties, even as against the crown …” In other words, it is the very ability that the courts have to rule in novel cases or in changing circumstances that allows them to defend individual liberties.
The pastor with whom I have been having a discussion commented on yesterday’s blog post:
One might argue that the courts should have thrown out slavery, given women the right to vote, etc., long ago. But as horrific as slavery was, and as repulsive as denying women the right to vote was, these were matters which should have been left up to the states or, as we are all thankful for, made “constitutional” through the amendment process.
But, that is precisely what eventually drove the courts to rule on the issue of civil rights in the 1950’s. It took a horrific war; it took women taking to the streets and being force fed to death during hunger strikes, etc., to finally bring change. In the case of civil rights, despite the images from Birmingham (Bombingham), the assassinations, the burnings, etc., it became clear that the normal process of amending the Constitutions was not going to work. Just like a minority today was willing to let the country go into default, so was a minority back then willing to let the country descend into chaos.
And, in fact, the country did partially descend into chaos. The marches of the 1960’s, the Watts riots, the Detroit riots, etc., show just how close this country did come to chaos, despite the various courts rulings.
Eventually, the courts in this country did act, precisely using the principles of common law to extend the principles of the Bill of Rights into new and novel situations. Thus, what had been legally permitted through the previous history of this country was banned, and now you could no longer refuse to hire blacks, to sell to blacks, to serve blacks, etc. And, it was the right thing to do.
Despite the claims of today’s conservatives, the courts (with rare exceptions) did not go to extremes. I disagree with Roe vs. Wade. Little by little some parts of that decision have been rolled back. More needs to happen. But, I am not a Roman Catholic, and to let what was back then a minority force their beliefs about birth control on the majority was not any more appropriate. Back then conservative Protestants were not against birth control. The courts were correct to reject the ban on birth control. That was a view that, back then, was held only by one minority group which used its political power to force its views on the majority. Had a simple democratic referendum been held, the proposition would have won.
A conservative Lutheran pastor recently commented on one of the posts in this series:
I do not see how it glorifies Christ in any way for me to claim some sort of religious conscience pangs and then refuse to serve my neighbor. Should a plumber fix the plumbing in the house of a gay couple? And why do we pick on only two items: abortion and homosexuality? How about refusing service to a venture capitalist who invests in blood diamonds? If I am a roofer should I should refuse to put a roof on the home of a doc who performs abortions? Where would all this end? Will an atheist dentist refuse to do my teeth because I am a Christian?
I believe that the discussion is based on false premises and that we are allowing our so called conscience pangs to dictate things rather than the love of God in Christ Jesus which calls me to serve my neighbor. We have an ongoing debt of love that we must pay and we pay it by serving not just our friends who agree with us but even our ENEMIES whether those are cultural enemies or military enemies (Romans 13:8-10).
The pastor points out that he would refuse to perform a gay wedding because that is contrary to Scripture and is an issue of church vs. state in a way that fixing someone’s roof is not. I happen to know that he is anti-abortion.
The courts do have principles to guide them in the use of common law. Among those principles are issues such as precedent. What have courts ruled before? Quite often appeals courts have overturned a ruling by a lower court. And the ruling was overturned based on prior precedent.
Another principle is the changing understanding of the inhabitants of this country. Can a minority so use its political power so as to prevent the use of other Constitutional means to address an issue? In the case of the civil rights movement of the 1950’s, the revulsion of the populace, the inability to act by the Congress, the misuse of the Tenth Amendment by the Southern States in order to keep blacks subjugated and powerless to vote, and the peril of imminent chaos finally drove the courts to consider this a novel situation and rule in the way that upheld individual liberties. And, no, the liberty to discriminate is not a liberty. The liberty of a business owner to refuse to serve certain of the public is not a liberty. So said the Supreme Court of that time. And, they were correct.
Today some Christians are legitimately concerned about the application of the Affordable Care Act. I think the nuns will win and that Hobby Lobby will lose, based on prior precedent. But, remember that common law is every bit as Constitutional as statutory law. The book by Oliver Wendell Holmes is but one book of principles on the application of common law.
Might the decision go against Christians? Most certainly it could go against Christians. But, here is the problem. Is the solution to such a problem for a minority of the Senate to block all judicial nominees by a President, to the point where the tradition of the filibuster has to be done away with? Is the solution to try to insist that the judicial system must be stocked only with the candidates approved by that minority? Can a minority insist that only their viewpoint can be legitimate?
A minority of the Senate cannot claim democratic principles and then try to use them in such a way that it prevents the majority of Senators from voting on a bill, the courts from functioning, and the Presidency from exercising its prerogative to name the heads of Federal departments. The problem I see is that a minority is insisting on being treated like a majority rather than finding ways to reach a compromise agreement that would either result in a satisfactory accommodation or even trigger the courts to protect the minority. I am now speaking not only of the Senate, but also of the way that politically conservative Christians are approaching the political process.