Should the Nuremburg Laws be constitutional?
But why stop there? Maybe only married people should be eligible for public office? We don’t have any Constitutional protections saying who can run for office, only a few prohibitions on who can’t.
And if the government can constitutionally intrude on the liberty of an individual to do what ever they please with their livestock, because it is icky, then maybe we don’t want those icky homosexuals holding our flag. In fact, I don’t see why we couldn’t make them wear a little patch identifying themselves as homosexuals.
Theoretically, nothing in the Constitution currently forbids the removal of voting rights from non-married persons. We cannot discriminate whom gets voting rights on basis of age, race, or sex, but marital status is not technically on that list.
The point is that we should not be concerned over what is or what is, but what should be. Twice Posner confuses what is with what should be. He asks:
But should the Constitution, or political philosophy, be understood to prescribe utilitarianism, whether in the Benthamite or J. S. Mill versions, or maybe “secular humanism,” as our civic religion?
And later answers:
And so if the population is religious, religion will influence morality, which in turn will influence law, subject to constitutional limitations narrowly interpreted to protect the handful of rights that ought not to be at the mercy of the majority.
And who interprets those constitutional limitations? Judges. Technically, they can decide what should and shouldn’t be (and whether that should be narrowly or broadly interpreted).
He sets up a potential counter argument:
Rawls and others have thought that religious beliefs shouldn’t be allowed to influence public policy, precisely because they are nondiscussable.
And refutes it with a literal description of the mechanisms by which we are attempting to realize some ideal:
It [modern democracy] is about forcing officials to stand for election at short intervals, and about letting ordinary people express their political preferences without having to defend them in debate with their intellectual superiors.
Whether admitted to or not, the Judiciary constitutes an American dictatorship practically. Since they are the only people who can interpret the Constitution, they can practically dictate law. If they interpret “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.” to imply that they are owed sexual favors from interns, what Constitutional recourse would exist?
This is not a bad thing, in fact I believe it may have been by design. In times of stability, a benevolent dictatorship can be the best form of government. The fickle nature of the demos does not usually produce ideal conditions for leadership decisions from elected politicians. In times of moderate instability the Executive can take power through martial law (though that is still subject to the ruling of judges constitutionally), and is in direct command of, well, government assets that can execute commands. The people of course are the ones in control in situations of total instability. Theoretically they are lead by the members of our legislature. If the Judiciary plays its role correctly, then stability will ensue and never allow other branches to take away its control, creating incentive to be benevolent.
So if one aspires to be one of these benevolent dictators, the questions of what should be are the most vital ones to answer.