One of the things that drives me crazy about conservative arguments on judicial matters is how they make these incredibly broad arguments that they refuse to apply consistently. Dennis Prager offers a textbook example:
Next to the presidential election, California Proposition 8 is the most important vote in America.
It will determine the definition of marriage for the largest state in America, and it will determine whether judges or society will decide on social-moral issues.
If it really comes down to a simple choice between judges or society deciding on “social-moral issues,” why does this argument not apply equally well to, say, Loving v Virginia? After all, the judges in that case ruled that “society” could not decide, based on bigoted and archaic religious mores, that people of different races could be punished for marrying one another. Judges got to decide in that case, not the majority of the people. So why isn’t Prager railing against that ruling?
This is the same kind of rhetoric the right uses all the time in response to court rulings that enforce the equal rights of others in ways they disagree with. It’s always about “unelected judges” overturning the “will of the people.” Unless, of course, the will of the people disagree with them, like they did in Oregon when the people voted to allow assisted suicide, or in California where the people voted to allow sick patients to smoke marijuana to help ease their symptoms.
In those cases, the very same people who throw a fit about judges deciding “social-moral issues” rather than “the people” rushed right into court and demanded that those black-robed agents of judicial tyranny strike down such laws.
The same is true when it comes to the concept of unenumerated rights. Whenever a court upholds an unenumerated right that they don’t like, conservatives cry, “Where is that in the constitution?” They argue that if the constitution does not explicitly state that you have a right to do X, then majorities can deprive you of that right.
But again, only when they disagree with such a right. When they think an unenumerated right is a good one — the right to travel freely, for example, or the right to send your children to private schools, neither of which is mentioned anywhere in the constitution — that broad rhetoric disappears.
This is what logicians call special pleading, the application of an argument only when it suits one’s desires rather than in all cases where it logically applies.