The final outcome of this case in a very real sense is a referendum on our Constitutional republic — with one man, Anthony Kennedy, eventually going to decide the fate of our experiment in self-governance. That fact alone is deeply troubling, and points to the fundamental structural problems we’ve allowed to take root in our thinking: having built a society around a document that was written to constrain government and institute a society premised on an idea of natural rights, we then undermined the entire enterprise by adopting an idea of language that replaced what the Constitution meant with what it can be made to mean — that is, we replaced a society built on the rule of law with a society that is run on a rule of judicial activism, which naturally over time has grown demonstrably and frighteningly politicized.
Just how we came to have a Supreme Court so perfectly split along partisan lines — particularly on questions of Constitutional principles whose originary intent we know — is a signal that we have debased our language, and changed what it means to “interpret” to include not simply an attempt to decode an utterance as transmitted from sender to receiver(s), but all possible variations on that utterance a receiver can reasonably suggest the marks themselves, once resignified, can be shown to “say.”
Couple such linguistic irresponsibility with the over-reliance on precedent — which allows bad law to become “settled” law — and a country founded on the bedrock of legal equality devolves into just another society built on the quicksand of political expediency.
– Only, having kept certain trappings for show, it pretends to be otherwise.