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"Indeed, the rage of theorists to make constitutions a vehicle for the conveyance of their own crude, and visionary aphorisms of government, requires to be guarded against with the most unceasing vigilance."
     -- Joseph Story
     Commentaries on the Constitution of the United States
     Book III, § 1857.

Friday, January 30, 2004

Eugene Volokh on a gay-rights flap in Belgium. One paragraph of Volokh's commentary needs a fisking:

Not long ago, that homosexuality was a perversion was the orthodox view. Free speech changed that; the gay rights movement, like the racial and sexual equality movements, was a triumph of free speech and public persuasion.
No, Eugene, it was a triumph of judicial activism over representative government. The public remains unpersuaded. Most of the public would prefer simply that the problem went away; left to itself, it wouldn't bother to exert itself one way or the other. And a substantial majority disapproves of the policy the courts are foisting upon it, though not enough -- at least, not yet -- to think it worth bitch-slapping said courts with a corrective Constitutional Amendment.
Now some people in that movement are trying to restrict others' free speech, to lock in their gains and to silence dissenters from the new orthodoxy. Understandable, as a matter of human politics and psychology -- but still improper.
There is no "new orthodoxy," Eugene. There are two small groups in opposite corners screaming at each other across a room otherwise full of the fastidiously indifferent. You shouldn't mistake the crowd you hang out with for a representative sample.

-- posted by Clayton 1/30/2004 08:35:00 PM

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