Moral truth is in jeopardy when the courts enter the business of making law.
It may be hard to imagine any good coming out of last November's Florida follies, which left the presidency—like those infamous chads—hanging in the balance and the country bitterly divided. But there was one silver lining. The lawyers hopping from courtroom to courtroom opened our eyes to the perils of what George Will called "government by courts." The question raised—whether laws are made by courts or legislatures—has grave implications for self-government and special concerns for Christians.Many Americans believe the Florida Supreme Court overstepped its boundaries. It elbowed its way into the controversy, first by taking the case, not on appeal of the parties but on its own motion. Then it set aside a deadline prescribed by the legislature and substituted its own, while cavalierly ignoring a federal statute requiring that presidential elections be decided by rules in place before the election. This was too much for even the U.S. Supreme Court (which has exercised judicial hubris itself); it unanimously vacated the Florida decision, remanding the case.
Undaunted, the Florida court came back, four of the justices again ignoring the critical statutes. Again, the U.S. Supreme Court acted, finding that decision unconstitutional.
But the Florida court's power grab is only the latest example of a court substituting its judgment for that of the elected representatives, a trend that began in the 1960s. That's when the Supreme Court "discovered" in the Constitution a new right: privacy. Later, in Roe v. Wade (1973), it applied this right to abortion, thereby striking down statutes restricting abortion in most states. Since then, this trend has accelerated dramatically.
In Romer v. Evans (1996), for example, a democratically enacted ...
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