Thursday, August 04, 2005

The Slippery Slope to Legalized Incest

Many elites said that Justice Scalia was off his rocker when he made his slippery slope argument in his dissent in Lawrence v. Texas where the Supreme Court decided in 2003 that laws against consensual homosexual sex were unconstitutional. Scalia (joined by Rehnquist and Thomas) argued that the Lawrence ruling would lead to the overturning of laws against adultery, fornication, adult incest, homosexual “marriage”, polygamy, etc.

While many scoffed at this merely two years ago, Radford University professor Matthew J. Franck says here that we are on the verge of seeing it come to pass. The Seventh Circuit Court of Appeals recently ruled in Muth v. Frank that Wisconsin’s prohibition on incest is constitutional, but Franck says that the ruling will end with a bad result.

Let’s note that Franck is a professor of political science and is not a lawyer. Still, his analysis is difficult to reason against. He notes that while the court held in favor of Wisconsin, it clearly erred in its interpretation of Lawrence. He concludes that this was done on purpose so as to force the Supreme Court to take care of its own mess – a protest of sorts by the Seventh Circuit against having to rule that laws against incest are unconstitutional.

Franck suggests that this issue will soon come before the Supreme Court. The court will rely on Lawrence and will have to conclude that government has no legitimate interest in preventing adult incest. The rest of the practices mentioned above will quickly follow on the heels of that decision with the result that many of the laws codifying millennia-old mores that constitute the fabric of Western civilization will be tossed to the wind like so much chaff.

The current Supreme Court’s version of the Constitution consists not of law, but of what seems to be good in the minds of at least five justices. Justice O’Connor’s statements in Lawrence make it clear that she was ruling in the interest of what she thinks is fairness. However, the court does not exist to implement fairness. It exists to interpret law. As noted by Jonah Goldberg, many members of the current court simply “cannot tolerate the idea that a good law can be unconstitutional or that a bad law can actually be constitutional.”

Moreover, a ruling by the court will not settle the matter if public sentiment is against it. Note that three decades after Roe v. Wade the public is more sharply divided than ever over abortion and people on both sides of the issue are far from letting it be. The court may strike down widely accepted moral laws, but instead of ending the battle it will add new fire to it.

There is a groundswell of people who are tired of being told that the laws that they pass through our representative process do not pass the muster of elite justices. The court once held the philosophy that it should intervene against the properly represented will of the people only in the most egregious cases. Today it intervenes whenever something seems unfair to the elite and it keeps lowering the bar.

Charley Foster has a link on his blog to an American Enterprise Institute paper on the push by progressives to substantially alter the Constitution through judicial fiat (Part I, Part II). These articles are well researched and are very eye opening. It is worth fighting to bring some legal conservatives to the court. John Fund says that even this will be insufficient and that we now need 18-year term limits on Supreme Court justices. This is an idea I can support.


Feddie said...

Franck's piece misses the mark in several respects, but especially in his failure to acknowledge the context in which Muth was decided:

Reach Upward said...

Feddie: Thanks for your analysis. I agree that Franck's failure to point out that the Seventh Circuit's ruling was based on a Habeus is a kicker that ruins his position on this case. However, I think he has a point that something akin to the substance of this case will eventually come before SCOTUS based on Lawrence.