The question “should there be this law” and “must there be this law” is not a trivial game of semantics. It is foundational to whether we will be a republican styled polity or not. The Constitution does not permit or require every law you like. Nor does it prohibit every law you hate. If you think courts must stipulate every law you like and prohibit every law you hate, then you are not suited for republican government. One may, for instance, believe strongly that states or even Congress should prohibit abortion, or redefine marriage, or provide universal healthcare, while acknowledging that the Constitution doesn’t require them to do so. And questions of “should” are to be generally left to the elective branches for deliberation, not judges, in a republic. We cease to live in a republic not when bad laws are enacted, but when we don't care how any law, good or bad, is enacted or who enacts them.
Case in point:
Recently, the Supreme Court upheld Oklahoma’s method of execution. In the reasoning, Justice Breyer and Justice Scalia revealed a profound difference in how each understands the role of courts in politics and the interpretive philosophy to be used in deciding cases.
First, Justice Breyer’s view of the constitutionality of the death penalty has evolved, he confesses, after 20 years of reviewing death penalty cases, such that he now believes that it is “highly likely” that the death penalty violates the 8th Amendment’s prohibition against cruel and unusual punishment (he points to accumulating evidence of wrongful convictions). Herein is Breyer’s judicial philosophy. The meaning of the 8th Amendment (of the Constitution itself) evolves (though the words haven’t changed, nor have the judicial precedents on this matter). And if they do evolve, who gets to decide what the “new” meaning will be? Judges, not the people voiced through elected representatives in states or Congress.
Second, we have Scalia’s judicial philosophy: “Capital punishment presents moral questions that philosophers, theologians, and statesmen have grappled with for millennia. The Framers of our Constitution disagreed bitterly on the matter. For that reason, they handled it the same way they handled many other controversial issues: they left it to the People to decide. By arrogating to himself the power to overturn that decision, Justice Breyer does not just reject the death penalty, he rejects the Enlightenment.”
In my classes on government, I try to focus as much on how political and legal decisions are made as I do which ones are made. Sadly, this is an ever-enlarging blind spot impairing the vision of most citizens, who would often rather have the policies they like decreed by a tyrannical despot if a republic won't provide them.
By Dr. Troy Gibson
Dr. Troy Gibson has taught courses in American Politics, Religion and Politics, Christian Political Theology, Social Science Statistics, and Public Law for over ten years. He has a BA in Political Science from the University of Southern Mississippi and his PhD in Political Science from the University of Georgia. As a professor at the University of Southern Mississippi, he has published several academic studies in leading journals in the field of Political Science, such as The Social Science Quarterly and Politics and Religion. A specialist on the topics of politics and religion in American political thought, Christian political theology, and the Judeo-Christian roots of liberal democracy, Dr. Gibson and his research has been featured in several news outlets nationwide. As a Christian, Dr. Gibson believes he should draw from a biblical worldview. As a scholar, he believes he must, since understanding the world correctly requires it. Dr. Gibson serves God as a husband, father and churchman. His wife (and high school sweetheart) Natalie has been a first grade teacher, and their three children, Caleb, Noah, and Sarah Ann, are new homeschoolers. He regularly teaches the Bible, theology, and apologetics in Sunday School at Woodland Presbyterian Church (PCA) in Hattiesburg, Mississippi. For fun, Dr. Gibson enjoys spending time with his family, blogging, smoking meats, and cheering on the Southern Miss Golden Eagles.
If you are interested in learning more about the courses that Dr. Gibson teaches, you can find both the Omnibus III Primary and Government courses that he teaches HERE. Or if you'd like to view other courses that are offered, you can find them HERE in the 2015-16 course listing.
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