Ed Whelan is absolutely right–as he says in response to my posting on Bishop Skylstad’s letter to President Bush–that “the role of a justice in the American constitutional republic is distinct from that of a legislator.” He is right, too, that the Bishop’s letter betrays a limited understanding of the distinction (even if Ed’s claim that it displays not the “slightest understanding” of the distinction is a bit overstated). And I do not doubt that Ed and I would agree about what to do in the vast majority of constitutional cases that come before the Supreme Court.
Nonetheless I suspect that we differ a bit on the relevance of moral norms in constitutional adjudication. Now, by “moral norms” I mean simply what is true about, say, the morality of capital punishment or abortion; what simply is the case about when people begin (at fertilization or at birth or somewhere in between). For example, Ed asserts without qualification that the right constitutional answer to abortion is no answer; that is, the Constitution (Ed says) does not speak to the issue. For that reason, Roe is wrong. The issue does not belong in federal courts, but rather (at least mainly) in state political processes.
Now, it is true that the Constitution nowhere mentions abortion. But the Constitution guarantees the equal protection of all state laws to all persons. Those state laws include legal protections against being killed. If in truth the unborn are indeed human persons–as pro-lifers including myself characteristically hold–then it would seem that the Constitution might well have something to say about abortion. The Constitution might well say that state laws permitting it at least prima facie violate Equal Protection.
Take another timely example: marriage. The homosexual insurgency mounts a serious and non-frivolous challenge to state marriage laws: They arbitrarily–that is, without reason–exclude couples who (assertedly) can and wish to marry from the legal station of marriage, just (they say) as did laws against interracial marriage. Same-sex marriage advocates say that they suffer unjust discrimination, a violation of Equal Protection, just as did interracial couples of a generation ago. The correct answer back then is the one given by the Supreme Court in Loving v. Virginia: The complaining couples are right legally, basically because they right morally: Marriage is not the kind of thing that, in moral reality, has to do with race. State laws that ban interracial marriage were, therefore, simply a matter of racial discrimination, and that is unconstitutional.
The correct response to the homosexual insurgency is, too, finally based on moral truth (just as, by the way, the correct answer is to any polygamist who might claim a right to plural marriage): Marriage is really the kind of thing that involves (two!) persons of opposite sexes. That is why the law of marriage excludes same-sex couples (and groups).
Ed Whelan might at this point say that the moral truth about marriage is mainly the focal point of legislators, not judges. Just so. Ed might also say that the moral truth about marriage is an insufficient ground for a justice in our constitutional republic to overturn non-conforming laws in, say, Massachusetts. Right again. My point is simply that when traditional marriage laws are challenged as unjust the answer in court must include (whatever else it includes) reliance upon what marriage truly is.