Since Brown, that is exactly what has happened. As the constituency of the Court has changed, interpretation of the Constitution has changed. The Court has arrogantly enforced its own morality. "Equal protection" is no longer a simple bar against racist law enforcement; it is no longer even restricted to race itself. "Equal protection" now means that any law classifying groups differently must meet the Supreme Court's moral standards. Of course, all laws inherently classify groups differently. Murder laws will classify murderers differently than law-abiding citizens. Such laws have always been constitutional. But members of the Supreme Court must now personally agree that legal classifications meet their own moral standards.
In Bowers v. Hardwick (1986), for example, the Court declared that a Georgia statute criminalizing sodomy did not violate the "equal protection" clause. Justice White, writing for the majority, explained, "In 1868, when the 14th Amendment was ratified, all but five of the 37 States in the Union had criminal sodomy laws. In fact, until 1961, all 50 States outlawed sodomy, and today, 24 States and the District of Columbia continue to provide criminal penalties for sodomy performed in private and between consenting adults … Against this background, to claim that a right to engage in such conduct is 'deeply rooted in this Nation's history and tradition' or 'implicit in the concept of ordered liberty' is, at best, facetious."
By 2003, a constitutional right to engage in sodomy had been discovered. What changed between 1986 and 2003 to bring about this reversal? Nothing, except the constituency of the Court. And so the Constitution magically changed. Personal politics of the justices trumped the fully constitutional will of the people.
Nothing gives the Supreme Court power to overrule popular legislation wherever it pleases. The Constitution does not grant unlimited power to the Supreme Court. We live in a republic, not an oligarchy. No matter whether the Court considers the law in Kansas abhorrent or praiseworthy, it is none of its business under the Constitution. We must trust the people more than we trust tyrants. Anything less is tyranny.
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