From all the cheering and hissing that greeted the Supreme Court's decisions about the Affordable Care Act -- "Obamacare" -- and same-sex marriage, it seemed as if the issues before the court were elections or even football games, not judicial matters, legal construction.
That has been the problem with appellate courts for some time now, their tendency to act as unelected legislatures, deciding policy, decisions properly cheered or hissed, rather than interpreting constitutions and laws, a dispassionate undertaking quite separate from policymaking.
In the "Obamacare" decision, even Chief Justice John Roberts, writing for the court's majority sustaining the law, acknowledged that it was full of "inartful drafting" requiring the majority to reach for "context" elsewhere in the law so that "established by the state" could be construed to mean "established by the state or federal government." To prevent a vast, new edifice of government from collapsing abruptly under its flaws, the court's majority decided that the law didn't really mean what it said.
Those gratified by the Obamacare decision did not seem to worry that the court's conclusion -- that laws don't always mean what they say -- might someday be invoked to their disadvantage.
As for same-sex marriage, public attitudes have changed dramatically in its favor. Laws against same-sex intimacy long have been invalidated as invasions of privacy, based only on arbitrary religious objections, and there is little in marriage that same-sex couples have not been able to arrange through ordinary contract law.
Much if not most of the argument against same-sex marriage arises only from those arbitrary religious objections, which aren't really arguments at all.
As a practical matter lately the issue has been only whether all governments and commerce should have to ratify homosexuality.
But the weakness of the argument against same-sex marriage as policy has nothing to do with whether the Constitution requires states to authorize it. Further, equal protection claims for a constitutional right to same-sex marriage are themselves weak, since no person or class was being denied the right to marry. Everyone was free to marry someone of the opposite sex, even if sexual identity itself lately seems to have fallen into question.
The same-sex marriage case may have been a good example of the conflict between the two major schools of constitutional law, the "originalist" and the "living constitution" schools.
The originalists hold that constitutions must be interpreted to mean what they meant at the time of their enactment, or else they aren't really constitutions at all. The advocates of a "living constitution" hold that constitutions should be adapted to new circumstances without formal amendment through the democratic process, the adaptation done by judges, largely unelected.
Through the years political liberals and conservatives have inhabited both schools, but small-d democrats tend to favor the originalist school, while totalitarians everywhere favor the "living constitution" school, for reasons Lewis Carroll, in "Alice's Adventures in Wonderland," explained as well as anyone has explained them in the 150 years since:
"When I use a word," Humpty Dumpty said in rather a scornful tone, "it means just what I choose it to mean -- neither more nor less."
"The question is," said Alice, "whether you can make words mean so many different things."
"The question is," said Humpty Dumpty, "which is to be master -- that's all."
The "Obamacare" and same-sex marriage decisions suggest that Justice Dumpty would feel right at home on the Supreme Court.
