CultureStack

A friend of mine, a lesbian and eloquent, resolute defender of LGBT+, asked me, "how are abortion and gay marriage not a question for the judiciary?"

The highest law of the land that a judge recognizes in her official capacity is not your God or mine, who may very well recognize a right to abortion, gay marriage, prayer in schools, or the death penalty. It's the Constitution, which requires that the people recognize those rights and enshrine them into law.

Original essay available at https://www.culturestack.online/post/highestlaw.

This podcast is an add-on to the Originalism vs. Living Constitution episode. The original essay with citations is available at https://www.culturestack.online/post/originalism.

Widely misunderstood, Constitutional Originalism is not a desire to return to slavery and the days before women could vote. It's simply the belief that a judge's job is to determine and rule on the meaning of the law - the will of the people - as most recently enshrined into law. It makes no moral judgments like "abortion is good/bad" or "the death penalty is good/bad." Value judgments are left to the legislature - one of the important separation of power mechanisms built into the Constitution.

It's not that Living Constitutionalism makes bad decisions, per se, or even that Originalism makes ones we agree with. It's a question of jurisdiction, of "who decides?" By breaching the wall of separation between the legislature and the judiciary we introduce volatility, instability, insecurity, and illegitimacy into the political arena. We increase division and contention. We end up concentrating power into the hands of the few by removing it from the hands of the many. We encourage coercion rather than conversation. 

Confirming originalist judges like Amy Coney Barrett is a critical step in restoring the proper role of the judiciary and healing the bitter divisiveness in our nation.

This podcast is available in written form at https://www.culturestack.online/post/originalism.