Fighting the Wrong Fight pt3

Over at the Volokh Conspiracy, Randy Barnett is summing up a debate between Richard Epstein and Stephen Bainbridge on the use of judicial review. This is a discussion of the kind of institutional arrangement that might lead to fruitful reform. Epstein wrote at the Wall Street Journal (subscription required), and Baimbridge replied on his weblog, including generous quotes of Epstein's article. Further, Epstein has a reply at Bainbridge's site.

As I reveal in pt 1 (just below), my sympathies are with the libertarian side here, specifically, "guarantees of individual rights [pushed] to their logical conclusion." However, I recognize the concerns of the social conservatives (advocating a majoritarian democracy) that this is dangerous with a radical bench and schools. These radical institutions put us in a give-them-an-inch- and-they-take-a-mile situation. While I am loath to enshrine a Christian view of marriage in law, I am drawn to the conservative argument which Russel Kirk makes in an excerpt by Bainbridge, "Constitutional restrictions, political checks and balances, adequate enforcement of the laws, the old intricate web of restraints upon will and appetite—these the conservative approves as instruments of freedom and order," because the will and appetites of those who would re-define the family appears infinite.

There is much truth in the conservative motivations which Bainbridge espouses, and it may be sufficient to win my support for the marriage amendment as a last resort to block the actions of radical judges. Nevertheless, the better solution is an attempt to forge a somewhat more majoritarian order, not to rely on stop gap measures like this one. The schools and the courts must be reformed to bring them more into line with the popular will. Once that has been accomplished, it will be safe to apply Epstein's principle, that "The path to social peace lies in the willingness on all sides to follow a principle of live-and-let-live on deep moral disputes." That's why the marriage amendment is the wrong fight. We need to re-establish an order capable of retraining overweening appetites, so that the greatest and most expansive liberty can be extended free from the fear that abuses of liberty will undermine the very social order that preserves it.