The minuet of modern liberalism -- the dance of a doctrine in decline -- continues. Having become unpersuasive, and hence uneasy in political arenas, liberalism dabbles at democracy but increasingly relies on litigation rather than legislation to achieve its ends.
In Hawaii, where 70 percent of the residents oppose same-sex marriages, a judge has decided to redefine marriage, and hence society's molecular unit, the family. He says the state is violating the state constitution's equal protection guarantee because there is no "compelling" reason to "discriminate" against homosexuals by not licensing same-sex marriages.
When, after protracted debate, Californians emphatically mandated an end to racial preferences by their state government, liberals immediately went shopping for a sympathetic judge. He blocked enforcement of the mandate on the mind-bending ground that banning preferential treatment probably violates the U.S. Constitution's guarantee of equal protection of the laws.
So it goes in America's judgeocracy. And recent days have shown conservatives' willingness to use courts for their own purposes.
Last week the Supreme Court heard arguments about the constitutionality of a program requiring growers, processors and other handlers of certain commodities to pay into a fund used for generic advertising to encourage consumption of those commodities. Conservatives think government should stick to its proper business, which does not include marketing groceries. But can conservatives conscientiously seek a judicial remedy without seeming to subscribe to the idea that generates indiscriminate judicial activism, the idea that "unreasonable" is a synonym for "unconstitutional"?
Some California handlers of peaches, plums and nectarines want the court to find that their First Amendment free speech right is abridged because they are compelled to engage in speech -- advertising -- against their will. The court has held that compulsion to speak is akin to compulsion to silence. But do conservatives want, say, Quakers raising First Amendment objections to their tax dollars financing those "Be All That You Can Be" Army ads, which have a political dimension lacking in exhortations to eat nectarines?
Conservatives were on firmer, higher ground last week when asking the court to declare unconstitutional the unfunded burden Congress imposed on the states with the Brady act's requirement that sheriffs must conduct background checks of prospective gun purchasers. Here conservatives were seeking judicial relief on a matter of truly constitutional dimensions -- the functioning of federalism.
Congress frequently manipulates states by making receipt of federal funds conditional on certain behavior. But the Brady act simply conscripts sheriffs to work for free. If the Brady act survives, a restraint on Congress will be subverted. As Glenn Reynolds of the University of Tennessee law school notes, one restraint on a government is the limited willingness of its constituents to pay for what it does. But the Brady act allows the federal government to foist the costs of its activism onto lower governments.
Conservatives recently were reminded of the perishable nature of their gains, as opposed to liberals' gains, achieved by litigation rather than legislation -- gains in restraining rather than enlarging government.
In 1995, for the first time since 1937, the court, in a decision some conservatives called a "landmark," struck down a law on the ground that, although supposedly justified by the Constitution's clause empowering Congress to regulate interstate commerce, it was not really regulating an activity that is commercial or connected to interstate commerce. The court narrowly (5-4) overturned an act of Congress banning possession of guns in or near schools.
Four justices favored upholding the law because of some ideas Congress did not trouble to stipulate: Guns are connected to commerce because guns are connected to violence, and violence is connected to high insurance costs, reduced willingness to travel, bad learning environments and diminished productivity. In a separate concurrence, two of the five justices of the majority exhorted Congress to be more explicit about the constitutional warrant for exercising its powers.
So a few months ago Congress, which is incorrigible but instructable, reenacted the overturned law, this time including "findings" very like the thoughts of the four dissenters. The president signed into law this reiterated usurpation of local police powers. So much for the "landmark" decision that supposedly began restoring federalism.
Liberalism's tactic is conservatism's temptation. Judicial review is indispensable under constitutional government, but excessive reliance on litigation is for political losers. Whether the subject is selling nectarines or controlling guns, the truth is: The political branches, not the Supreme Court, must be the primary defenders of limited government and federalism. But they will exercise self-restraint only when staffed by principled people. Thus there is no substitute for political victories won by shaping public opinion -- by persuasion.