The US Constitution should not be sacrificed for the sake of populism, writes Dan Whitfield.
While Australians feverishly engage in a general election campaign, the US recently found itself fighting another battle in the Culture Wars – those perennial fights between Left and Right over the moral fortitude of the Land of the Free.Judge Vaughn Walker, Chief Judge of the District Court for the North District of California, recently upheld that the state's ban on gay marriage was unconstitutional. The ban had taken effect the previous November, when Californians – who voted overwhelmingly for liberal presidential candidate Barack Obama – also voted to ban marriages between homosexuals.
Judge Walker's decision prompted a surprisingly muted response from conservatives, which suggests that social issues will not play in this election season while the economy teeters on the brink of another recession.
Nonetheless, many social conservative groups – backed by talk radio personalities – blasted the decision. Labeling it judicial activism of the worst kind, these protestors claimed that Judge Walker had ignored the legally expressed will of the six million voters who wanted to see an end to gay marriage.
This argument exposes the danger conservatives face when they try to harness populism and simultaneously defend the US constitution. Judge Walker, despite what social conservatives may say, was under no legal or moral obligation to heed the wishes of voters. His job was to determine the constitutionality of the ban on gay marriage. The wisdom of his decision can be debated at length, but it beyond doubt is that an issue's popularity is irrelevant to whether it is legal or not.
The conflict between populism and the law exposes conservative activists to the charge of hypocrisy. In 2008, the famous DC vs. Heller case came before the US Supreme Court. The decision overturned Washington's ban on handguns, and was greeted with elation by conservatives.
But, if we follow the logic of those campaigning against Judge Walker's decision, was this not an example of the kind of judicial activism conservative's find so objectionable? For years, voters had elected representatives in Washington who stood on a platform to ban handguns. It was an overwhelmingly popular measure. But its popularity did not alter the fact that it was unconstitutional.
The US Supreme Court, like Judge Walker (who was, incidentally, nominated to the federal bench by Ronald Reagan) made the right decision. They adhered to the constitution, and ignored populism.
Dan Whitfield is a writer living in Washington, DC, specializing in the conservative routes of America’s founding. Previously Dan worked for the Leadership Institute, America’s largest training organization for conservative activists.
