School-choice measures have gained momentum over the past decade, changing public education in ways inconceivable to Americans of yesteryear and causing heartburn among those who revere that century-old institution.
So imagine if the Supreme Court were to fast-forward the legislative process playing out in these United States by declaring a constitutional right to choose your child’s school, with no state able to set a different path or even come around to that policy on its own.
If that sounds like a usurpation of a state and legislative prerogative, now you know how a lot of gay-marriage opponents feel.
The court's 5-4 decision in Obergefell v. Hodges stirs many passions because of the subject involved. But to appreciate just how drastic a step it is, you have to set aside the subject matter and view the case in the context of other recent changes in the way our government works, versus the way it was designed to work.
“Those who founded our country would not recognize the (five-justice) majority’s conception of the judicial role” in setting social policy, wrote Chief Justice John Roberts in his dissent. “And they certainly would not have been satisfied by a system empowering judges to override policy judgments so long as they do so after ‘a quite extensive discussion.’ In our democracy, debate about the content of the law is not an exhaustion requirement to be checked off before courts can impose their will.”
Roberts then quoted his predecessor, William Rehnquist: “Surely the Constitution does not put either the legislative branch or the executive branch in the position of a television quiz show contestant so that when a given period of time has elapsed and a problem remains unresolved by them, the federal judiciary may press a buzzer and take its turn at fashioning a solution.”
Rehnquist had more foresight than he might have known. For not only the judicial branch has decided impatience trumps the Constitution.
On the White House’s website there is an entire page titled “We Can’t Wait,” on which the Obama administration boasts of actions it took rather than “wait(ing) for an increasingly dysfunctional Congress to do its job.”
These executive actions, then, by definition are properly left to the legislative branch. America is not being guided by the Constitution, but by six people — a president and five judges — playing trigger-happy quiz-show contestant.
The legislative process is messy. This is by design. The bicameral structure of Congress; the different way each chamber allocates seats to the states; the Senate’s deliberative nature compared to the more passionate House: These are features, not bugs, of a lawmaking system intended to avoid, among other things, the capriciousness of the royal regime from which the new nation had divorced itself.
Now, it is the nature of 21st-century America not to be content with slow or gradual change. The pendulum has typically swung as far from center in one direction as it had traveled in the other, but these days it swings faster and faster.
It is one thing for society to jerk and halt in such a way; a government for nearly 320 million people should be more (little-C) conservative in its approach. Remember: The swift change could just as easily go against you next time.
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