It's Not a Good Idea for the Supreme Court to Legislate Morality

So here we are, with another Supreme Court nomination fight on our hands.

I was to dinner with the liberal neighbors last night and they were all sighing over the death of Supreme Court Justice and liberal icon Ruth Bader Ginsburg. They had seen the documentary of her life, RBG, and were full of scenes like the moment in law school when the professor publicly made fun of her taking a place away from a guy.

For me, Ginsburg was a problem, because as a Good Little Girl of her feminist generation she thought that the job of the Supreme Court was and is to legislate liberal morality.

Of course, liberals high and low are horrified by the idea that Donald Trump might nominate a conservative Christian woman like Amy Coney Barrett. The Noive!

All I have to say, liberals, is that this is the wages of your strategy of legislating from the Supreme Court.

That is not what the law is all about. In the end, you will rue the day that you decided to start legislating your agenda through the administrative state and the law courts, but that time is not yet.

Now, some years ago I read The Story of Law by John Maxcy Zane. And the big takeaway for me was how much that the story of law has been about inheritance and commerce. In other words, when things go wrong with inheritance and with trade, that's when you have to call in the lawyers. It's amazing how complicated things can get. Why is this? Zane writes:

Nothing is more silly than to say that the law made private property. The fact is the exact opposite. Private property came to exist and it made the law. (p.147)

In other words, once humans began to treat some or all property as private, attached to an individual, then humans needed law to sort out conflicting claims about private property. 

That has made me skeptical, ever since, of the usefulness of law when it comes to morality.

Let us ventilate three ideas.

Politics and government are all about force. On what grounds can the state apply force to people? Because of violence? Because the state needs the money to pay for its wars?

Law is all about private property. What do you do when the heirs to railroad magnate -- and notorious robber baron -- Jay Gould start fighting over his $30 million fortune?

Religion is all about morality. What do you do about behavior you regard as immoral?

May I say that I regard this separation of powers as one of the most amazing achievements of humankind?

Let us investigate the question of abortion in this light of this separation of powers.

What do you do, for instance, about a woman who aborts her fetus? Immediately after conception? After the first trimester? Just before normal birth? Right after birth?

Now, I would say that a man that tells a woman carrying his child to "get rid of it" at any point is a cad. I take the moral position that if you have sex with a woman then your act is a commitment that says you would like her to have your child. Don't like my morality? Fine. I ain't forcing it on you.

But whatabout a woman who decides to abort her fetus?

In the first trimester? I'd call her flighty and foolish.

In the second trimester? I would call her very flighty and very foolish.

In the third trimester? I would call that flat out immoral.

At or immediately after birth? I would call that a crime.

See, I believe there is a difference between an immoral act, where all good women agree to name and shame and shun the immoral wench in question, and a criminal act, which implies an act of force, where police and criminal courts and hanging judges and gaolers are needed to take care of things.

But there is always a temptation, especially if you are a fervent believer or an ambitious elitist, to legislate morality, to treat questions of morality using the state institutions for dealing with human-on-human violence.

And that is the Big Problem of our times. Our liberal educated Gentry have abused their position as cultural arbiters, as what Curtis Yarvin calls the "Cathedral," to impose their morality on the rest of humanity.

See, even though I think that a woman that gets an abortion is flighty and foolish, and a man that encourages his partner to "get rid of it" is a cad, I still don't think that it should be a question of criminal procedure.

However, when a woman encompasses the death of her newborn baby, as George Eliot dramatizes in Adam Bede, where the abandoned mother Hetty Sorrel abandons her baby in a pile of leaves, well, that is something that requires the state to intervene. George Eliot makes it perfectly clear that Hetty Sorrel is both flighty and foolish. But she saves her from the gallows and sends her off to Australia. George Eliot was a sweetie.

Back in the day it seemed like a good idea to liberals to legislate Roe v. Wade from the bench and bring the US into the 20th century and legalize abortion like all modern societies in Europe. But did you know that the "modern societies in Europe" all pretty well ban abortions after the first trimester? Whereas in the US liberals are toying with OKing abortion "after birth?"

Then, of course, liberals legislated Affirmative Action and gay marriage and I know not what from the Supreme Court.

Problem is that what yesterday's Supreme Court decides last year can be reversed next year. So all your liberal Supreme Court decisions rest on a knife-edge, the partisan composition of the nine justices. So that is why all liberals go crazy whenever there is a vacancy on the court that takes place when a Republican is president. Because suddenly everything is at risk!

Let me tell you a story. Back in 1984 in Washington State, the religious right put Initiative 471 on the ballot to ban public funding of abortions. It went down, 53%-47%. And that decided the question of abortion in Washington State. Basically, we haven't  had a peep from the religious right since.

Do you see the difference of deciding this by a vote of the people and a vote of the educated elite? When the people decide, that is final. When the elite decides they end up having to enforce their decision with cancel culture. Why? Because they didn't take the trouble to persuade people. They just used their power as the educated elite to change the rules, and don't you dare object, peasant.

I don't know when our liberal friends will see the error of their ways. I would guess not for decades, not until there is a permanent Republican majority on the Court and a permanent Republican majority in the Congress.

What? Is that even conceivable? Well, it does according to my reductive Three Peoples theory. The evolving Republican Party under Donald Trump is a party of the ordinary middle class Responsibles, the Commoners. And our liberal friends have no idea, No Idea, that Commoners have a different view of the meaning of life, and have a right to have the government and its laws take account of that.

But, the bigger question would be for the government to get its cotton-picking hands off morality and let ordinary religious communities take care of the question of naming, shaming, and shunning the members of their community that violate their unwritten moral values.