You can't get there from here
Our previous post made reference to the sane part of the Wall Street Journal. Now to the er...other part. Perhaps to circulate some advance talking points for a weekend Vast Rightwing Conspiracy cocktail party which Andrew Sullivan will attend, Friday's OpinionJournal weighs in on legal aspects of the gay marriage debate. Much of this debate has featured an almost comical parade of pairings and permutations of perverted people and pets with which society will soon be confronted via the dreaded Slippery Slope.
Now, the dwindling number of rational people with some influence on this debate have pointed out that the Slippery Slope concept is total nonsense: a society can always evaluate each step along a chain of possibilities and decide where it wants to stop. If the courts go faster than society wants, then over time society can adjust the composition of the courts, or society can decide that yes, in fact, it likes the seemingly radical changes introduced by courts and does not wish to go back. We separate powers for a reason.
Undeterred, the OpinionJournal boys, perhaps having consulted a chump law professor somewhere, take another run at the slope, doubtless having congratulated themselves on finding favoured liberal bits of the slope:
The 14th Amendment [the 1868 Equal Protection clause] was the basis for the landmark Brown v. Board of Education decision of 1954, which declared unconstitutional the segregation of government schools. But it has also been the basis for a series of other court decisions that have profoundly affected American life but have nothing to do with the rights of blacks...
A partial list of the Supreme Court-driven changes we owe to the 14th Amendment:
The ban on prayer in government schools and other restrictions on religious expression in public venues (Engel v. Vitale, 1962, and subsequent decisions).
The establishment of a constitutional right to contraception (Griswold v. Connecticut, 1965).
The right to abortion (Roe v. Wade, 1973).
The right, subject to limits that are minimal in practice, to distribute pornography (Miller v. California, 1973).
The abolition of all state laws against consensual gay sodomy (Lawrence v. Texas, 2003).
Intriguingly, the boys have the same case of amnesia about key 14th Amendment jurisprudence as Antonin "Fat Tony" Scalia, because like Fat Tony, they forget the nation's most traumatic recent 14th Amendment Case: Bush versus Gore.
But the incoherence and double-talk only grows from there:
The point of this list is not to make a judgment as to whether any of these cases were good law or good policy. It is simply to underscore the extreme unlikeliness that the framers of the 14th Amendment could have foreseen any of these results in 1868.
Yet there is a logical progression from the sweeping language of the 14th Amendment to the jurisprudence of the late 20th and early 21st centuries.
Here they've managed to make the opposite point to the one they intended: not being time travellers, it is indeed true that the 1868 framers couldn't have foreseen the subsequent cases, but it was their "sweeping language" that we can now see created a "logical progression" to current case law. So what's the problem? The world moves on, we acquire new problems, new standards, new tools, and new information, and if our ancestors were clever enough, they left us with a framework that can correspondingly adapt. This is not a bad thing.
And there's an iceberg sitting at their end of their rant, the little bit of danger visible at the surface signalling more malign material underneath:
Imagine if a conservative Southern politician had reacted to Brown v. Board of Education in 1954 by issuing the following prediction: "If the court can strike down our precious institution of segregation, are there any limits? One day it will affirm the right to practice sodomy, and men will even marry men." History would have recorded this as a bigoted and hysterical pronouncement. But purely as a matter of prognostication, our hypothetical politician would have been proved right.
This a recurring style of rhetoric for opinionjournal: the repeated disassociation from a particular point of view to the point where they doth protest too much: imagine, prognostication, hypothetical. But nowhere do they lay out the logical sequence, the progression of cases, that leads from Brown v Board to the wedding announcement of John Kerry and Miss Piggy. The 14th Amendment provides us with a small core, with many lines of possibility radiating in different directions. Brown v Board sits somewhere on one line. The Kerry-Piggy nuptials sit at the end of another. Society dines a la carte.