Thursday, December 9, 2010

DADT repeal fails; time for some judicial activism

The theory by propounded by haters of "judicial activism" is that America's political arguments are best settled in a political -- not legal -- arena. Judges should defer to Congress, the thinking goes, because Congress is elected by the citizenry, and thanks to elections every couple of years, is accountable to that citizenry.

But: It's clear that overwhelming majority of Americans favor a repeal of "Don't Ask Don't Tell." And a nearly overwhelming majority of the Senate does so, as well: 57 Senators voted today for cloture on a bill that would repeal DADT. These aren't close numbers in either case. Yet there will be no repeal of DADT. Procedures.

Meanwhile, a case against the law sits in front of the U.S. Court of Appeals -- slowed down, apparently, to allow the political process to take the lead. I hope the case now goes forward with all due speed. And I hope the courts affirm the decision that DADT is unconstitutional.

This will surely bring more cries of "judicial activism" from the right, if it happens. But who cares? If the political arena can't be responsive not only to the wishes of a large majority of the citizens, but a large majority of its own members, what good is it? There's a plausible argument to be made that DADT is unconstitutional; the courts should feel free to act on that argument. They'll be hewing closer to the wishes of the citizenry than the political branches.


Parks said...

Prove it's a large majority, and you might have a case. Hard to do that though, since that same majority either failed to vote or voted knowing that Republicans would not be amenable to it.

This is typical dem though, ultimately creating a large majority out of whole cloth and using it to push through changes unassailable by democracy. If you want a non-partisan example of why this is bad, replace "DADT" with "Assisted Suicide." You aren't the only one that could appeal to a theoretical large majority.

Joel said...

In what universe is a 57-40 vote of senators not a large majority? In what universe is 78 percent of the citizenry not a majority? (That's the poll I linked to.) There's nothing "theoretical" about the majorities I describe.