Wednesday, September 29, 2004
Yesterday Justice Scalia gave a speech at Harvard in which he stated that issues like abortion and assisted suicide are "too fundamental" to be decided by the judiciary. I am sympathetic with that view; the problem, of course, is distinguishing those issues from issues that may be "too fundamental" to be left to majority rule. Certainly our embrace of rulings like Brown v. Board of Education may be distinguished as necessary protection for a disfavored minority, but there are less clear grounds for distinction when we advocate for a more robust and unmistakably anti-majoritarian judicial protection of rights of association or religious exercise, for example. Is the ability of Catholic Charities to resist state compulsion to provide contraceptives "too fundamental" for judicial resolution -- i.e., under Scalia's view, shouldn't we let the citizens of California construct their own conception of reproductive freedom? Or shouldn't we let the citizens of New Jersey determine whether the Boy Scouts should be allowed to discriminate based on sexual orientation? The list goes on, of course; the point, I think, is that we have to be careful when we embrace "the people" as the final arbiter of "fundamental" social controversies. Leaving the definition of the common good up to the one-size-fits-all trump of collective determination might prove riskier than it seems.