We should care about not only the content of the laws in effect against us, but also about the processes by which they come about. First, we should care because processes are important in themselves. All things equal, I’d rather have a policy of good content be the result of genuinely democratic decision rather than judicial decision; my peers, rather than the judiciary. Second, we should care because the processes matter in terms of consequences. Bad legislation is easier to fix than bad Supreme Court precedent on fundamental issues. (The latter is only fixable by constitutional amendment.) Etc. Also, if as libertarians we focus on legislative rather than (merely) judicial action, that means our focus is on persuading our fellow citizens rather than officials in robes, which means more lasting change.

I think the law in action should match as much as possible popular (actually held) morality with respect to government, even if that morality is odious; and our job should be to convince our fellow citizens that the prevailing morality is odious and in need of change.

But my thoughts on this might be different tomororw.

P.S. Not sure what if anything this adds or takes away from what I just wrote: I like the idea of having a former constitutional law professor (Obama) in the White House. And I think more of him for his statement during one of the debates that he regrets acting as he did with respect to the Schiavo affair because as a former constitutional law professor he “should’ve known better” (paraphrase).

To me this managerialism is what defines her as an establishment liberal, whereas Obama has just a tiny hint of genuine leftism. I’m not surprised Clinton tried to hide her paper on Saul Alinsky: it was totally out of character for her.

I often feel some conflict on this issue as well. Take the Bowers v. Hardwick case from ‘86 when SCOTUS declined to strike anti-sodomy laws used against homosexuals. I HATED that result, but try as I might, could not come up with a rationale for another result.

But then in the more recent Lawrence case that reversed Bowers, Texas sought to apply anti-sodomy laws ONLY against gays, not heterosexuals. If, in Bowers, I were on the bench and it had been argued that the anti-sodomy law was virtually always used only against gays, I could have hinged a finding against it on the Equal Protection Clause of the 14th. I think.

I’d want to.

But the Hayek influence also reminds me that organic social evolution is more peaceful, even if slower. There is enormous value to reduced “culture wars.” Hence, my frequent conflict on “judicial activism.”