Another straw in the wind

Immigration is is not the only issue that suggests rather strongly that the claim we live in a democracy is mostly propagandistic. To my mind it seems obvious that our government is more technocratic than democratic. It’s a complicated world today, with a complex and largely hierarchical organization, and in such a setting the views (and therefore the collective interests) of those who run our national life quite generally win in the end over popular concerns, which tend to be ill-informed and only sporadically active.

That seems the fact of the matter, and fact is increasingly backed up by theories promulgated in the name of “human rights,” a system that restates technocracy as a moral ideal that makes all human concerns mutually equivalent so they can all be handled efficiently through value-free commercial and bureaucratic institutions. John Rawls says somewhere in his Political Liberalism that courts should view liberal principles as “entrenched”—as so integrated with the basis of law and social order that any attempt to get rid of them, even through constitutional amendment, should be ignored. The view is apparently gaining some traction in the administration of the law. According to the Massachusetts Attorney General, a proposed amendment to the state constitution intended to reverse the Supreme Judicial Court’s decision imposing “gay marriage” on the Commonwealth might well be unconstitutional even if properly adopted by voters in a referendum. She quotes the following comments by two justices of that court:

“… the Goodridge decision [imposing “gay marriage”] may be irreversible because of its holding that no rational basis exists, or can be advanced, to support the definition of marriage proposed by the initiative and the fact that the Goodridge holding has become part of the fabric of the equality and liberty guarantees of our Constitution. If the initiative is approved by the Legislature and ultimately adopted, there will be time enough, if an appropriate lawsuit is brought, for this court to resolve the question whether our Constitution can be home to provisions that are apparently mutually inconsistent and irreconcilable. We may then give careful consideration … to the legal tenability and implications of embodying a provision into our Constitution that would look so starkly out of place in the Adams Constitution, when compared with the document’s elegantly stated, and constitutionally defined, protections of liberty, equality, tolerance, and the access of all citizens to equal rights and benefits.”

The AG predicts “protracted, hard-fought litigation about the constitutionality of such a provision” if it should be adopted, and promises her support in such an effort. So in Massachusetts, at any rate, it seems that the abolition of marriage as a fundamental pre-political institution, with specific natural and social functions, is considered by the highest legal authorities to be so basic to social organization that it can’t possibly be changed no matter how much the people want to change it.

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