From the October, 2004 issue of Touchstone
marriage High Courts & Misdemeanors by Robert P. George

High Courts & Misdemeanors

Lochnerizing Courts & the Abolition of Marriage

by Robert P. George

Judges are not legislators. The legitimacy of their decisions, particularly those decisions that displace the judgments of the people’s elected representatives, depends entirely on the truth of the claim that the law authorizes the court to settle the matter. When this claim is false, a judicial edict is not redeemed by its good intentions and even its good consequences (if the consequences of the edict in fact turn out to be good).

Decisions in which the courts usurp the constitutionally granted authority of the people in a basically just democratic polity are not merely incorrect; . . .


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