Jewish World Review April 3, 2013/ 23 Nissan, 5773
Time, the best judge
By Paul Greenberg
In 1793, the first administration of
Would the learned justices of the court please interpret some of the more uncertain clauses of the country's treaties affecting its relations with
It was a reasonable and polite enough request of the court. To which the court responded with equal deference.
Rather, the justices explained, with all due modesty, that their function was to decide disputes between litigants who had a legitimate interest in the cases before the court. (Today we call it standing.) And not dive in and tell the government of
Wise man, and judicious chief jurist, that
"The lines of Separation drawn by the Constitution between the three Departments of Government, their being in certain Respects checks on each other, and our being judges of a court in the last Resort, are Considerations which afford strong arguments against the Propriety of our extrajudicially deciding the questions alluded to; especially as the Power given by the Constitution to the President of calling on the Heads of Departments for opinions, seems to have been purposely as well as expressly limited to executive Departments.
"We exceedingly regret every Event that may cause Embarrassment to your administration; but we derive Consolation from the Reflection, that your judgment will discern what is Right, and that your usual Prudence, Decision and Firmness will surmount every obstacle to the Preservation of the Rights, Peace, and Dignity of the united States."
Can you imagine today's intercourse between the different branches of our federal government, specifically
All of which now brings us to that same
Yet that is the question now before the high court, which has been invited to overrule a
To do so now would invite the same kind of Forty Years War in the political arena that the court unleashed in 1973 when it declared abortion the law of the land. Apparently under the delusion that it could overrule any and all qualms, moral and legal, state or federal, about the killing of the unborn. Result: The court opened a great divide in the law and in public opinion that has only grown greater since.
That is what comes of declining to leave so volatile a question to the courts and legislatures in every state -- those laboratories of democracy, Mr.
Some of the worst and most divisive decisions ever handed down by the
Rather than wait for the law in its deliberate speed to resolve such issues in the goodness of time, the high court is now asked to short-circuit the case-by-case accumulation of precedent known as the common law.
It is good that the court spent hours, even days, debating not so much the essence of the great issue now before it but procedural matters, including who has standing to bring so momentous a question before it.
If the learned justices will continue to exercise judicial restraint, holding their judgment in abeyance till the proper time arrives and the proper circumstances arise, both the court and the country might awaken some day to discover that the best of judges has settled this issue amicably, respectfully, and, in regard to the institution of marriage, even reverentially. For the best of judges is the passage of time.
All that's needed now is a little judicial restraint. And a willingness to allow so intimate and basic a question to be settled where it has long been lodged -- in the laws governing personal relations (like marriage, divorce and inheritance) in the laws of the several states. And in the federal laws that govern a multitude of programs administered out of Washington, from
Once time does its work and the fruit of patience is reaped (it is called peace), it is easy to imagine the shade of
Thank you for reading.
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