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cycle, and suffer its wrath if they are wrong. And in a world grounded in the rejection of
any immutable truth, legislative pronouncements have the added advantage of being able
to claim that they reflect majority will.
The right solution, of course, is for the courts to turn back to a jurisprudence
grounded in the natural law principles of the Declaration of Independence—Justice
Clarence Thomas has at times embarked upon just such a task.
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But absent a recourse to
such principles, the courts should not be surprised if legislatures, executives, and even the
people themselves give less and less credence to their dictates. A “Rule of Law” that is
itself lawless is not the kind of “law” that generates (or deserves) respect. In other words,
we can expect many more Judge Roy Moores unless and until the Holmesian heresy is
finally defeated and the “least dangerous branch” taken down from its pedestal and
restored to its co-equal station in the government, exercising judgment and not will.
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See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 240 (1995) (Thomas, J.,
concurring).
Convention