I just came across this editorial by Mitt Romney, governor of Massachusetts. Basically, it's a plea to the country to pass "defense of marriage" acts—which is fine with me; it's a free country and he should feel free to make all the pleas he wants to. I did find it interesting that he specifically mentioned the Dred Scott case, given the parallels many draw between these rulings and the progressive civil rights rulings in the 60's. I guess it's an attempt to point out that the Supreme Court isn't always right. This is, however, a sword that cuts both ways, as you can substitute "slavery" for marriage in his arguments (and other terms in other places as appropriate) and get a document that, in many places, reads like arguments for slavery that might have been made at the time had the Supreme Court decision gone the other way. For example:

In a decision handed down in November, a divided Supreme Judicial Court of [the United States] detected a previously unrecognized right in our [100]-year-old constitution that permits [slaves] to [be free]. I believe that 4-3 decision was wrongly decided and is deeply mistaken.

Contrary to the court's opinion, [slavery] is not "an evolving paradigm". It is deeply rooted in the history, culture and tradition of civil society. It predates our Constitution and our nation by millennia. The institution of [slavery] was not created by government and it should not be redefined by government.

A few simple substitutions shows how absurd some of his arguments truly are. But that's just an interesting mental exercise, and not the main point. The main point is this:

I am deeply disturbed by some of the statements he makes about the way our government works. I am not sure whether he is truly ignorant, or simply trying to manipulate people through their ignorance; either way it is entirely unacceptable behavior. Here is one of his primary arguments:

Beware of activist judges. The Legislature is our lawmaking body, and it is the Legislature's job to pass laws. As governor, it is my job to carry out the laws. The Supreme Judicial Court decides cases in which there is a dispute as to the meaning of the laws or the constitution. [...] If the powers were not separated this way, an official could make the laws, enforce them and stop court challenges to them. No one branch or person should have that kind of power.

It is inconsistent with a constitutional democracy that guarantees to the people the ultimate power to control their government.

By its decision, the Supreme Judicial Court of Massachusetts circumvented the Legislature and the executive, and assumed to itself the power of legislating. That is wrong.

What? The court did exactly what he says they should be doing: it interpreted a dispute as to the meaning of the state laws and constitution—and found the law wanting in light of the constitution. So by the definition he gave, they did nothing wrong, and yet he calls what they did "[assuming] the power of legislating." I can see no other interpretation of his statements except that he believes that the court should be able to make only minor interpretations of laws, and that disagreeing with a law—even if that decision is based firmly in the state constitution—is overstepping their power. So what is he saying? If you read between the lines, it looks a whole lot like he believes that the Legislature should have complete control over laws (or in his own words, "stop court challenges to [laws]"). He invokes separation of powers but uses it to argue against separation of power! The argument is of course even more absurd than that, because he leaves out the crucial point that there exists a check already in place, namely the ability to create constitutional amendments, for exactly the case where an overwhelming majority of people disagree with the court's decision... odd that he's forgotten it, when only a paragraph earlier he urged people to pursue and support that course of action. Or is it truly that it has not occurred to him that the only reason to have the power to make constitutional amendments is if the drafters of the constitution intended the courts to have exactly the power they exercised in Massachusetts?

I also take issue with the one-liner about the constitutional democracy, and his later statement that "This issue was seized by a one-vote majority of the Massachusetts Supreme Judicial Court. We must now act to preserve the voice of the people and the representatives they elect." Taken together, it sounds suspiciously like he is trying to make everyone feel like the courts trampled on their right to have the government respond to "the voice of the people"—also known as "majority rule". In fact, our government is a constitutional republic, precisely because mob rule was seen by our founders to be a terrible idea (partly because our founders are, like me, elitist snobs, but partly because life under the Articles of Confederation had pointed out some serious problems with majority-rule government).

In summary, I have this to say to the governor of Massachusetts, and others who make similar arguments: You don't like the idea of gay marriage? Fine. You disagree with the court's decision? Fine. Convene a constitutional convention, and vote on a Discrimination against Homosexuals act (I refuse to call it Defense of Marriage; I am married, and feel entirely unthreatened. To me, it looks like a spade, and I'll call it such, even though some of those promoting it genuinely believe that it's not a spade). Maybe it will even pass, and I would be saddened by that. But what I will not be, if that day comes, is dishonest and manipulative. I will never claim that a constitutional amendment is an abuse of power, or that any branch of government has overstepped its bounds in creating such an amendment. I will not try to sow misinformation about the workings of our government and conflate a moral issue with one of governmental process in an attempt to win people to my side.

I know it's too much to ask that everyone be honest about how our political process works and is intended to work, but it is not too much to ask that our politicians do so. Mr. Romney, I pity you—you are clearly driven by fear to lash out in this way—but I cannot respect you.

Category: Society

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