Tocqueville gives us good reasons to think that constitutional amendment is the best path to avoiding judicial supremacy.
Recently, I raised the issue of the worldview of the Resistance to President Trump (“Resistance, in the Light of 1776”). I would like to delve further into the matter. It will take a few installments. Basically, what I hope to do is to put order in some readings, observations, impressions, and overhearings (I live in a university neighborhood, and one establishment I regularly eat at is the aptly named “One World Café”). This effort is neither scientific nor conclusive. Call it “political” in the sense Pierre Manent employs when he says les choses politiques arrivent en gros (“political things first come to sight in rough outline”).
I take as my starting point a widely shared observation: that the Democratic Party, the chief organ of Resistance, is wedded to identity politics, especially a secular trinity of race, sex and gender. William Voegeli, for example, says that the party is in the “grip” of “identity liberalism,” and he locates that trinity at the core of a moral-political vision of “diversity, multiculturalism, and inclusivity” that constitutes its identity.
Race is a good starting point. Ferguson, the campus protests, and the emergence of Black Lives Matter as a mediating force bring us into a third phase of modern liberalism’s dealing with the shameful history and legacy of slavery and segregation. First there was LBJ’s landmark Civil Rights legislation and Hubert Humphrey’s version of affirmative action (outreach seeking to widen the pool of qualified candidates and a promise “to eat [his] hat” if it became racial quotas). Affirmative action, however, did become quotas, and set-asides, and requirements of proportional representation, in part because of the slow pace of improvement yielded under the previous regime. Liberalism thus entered a decidedly different phase, where formal equality and equality of opportunity were to be replaced by real equality and measureable results. “Diversity” became a mantra, a goal, and, in many instances, a cudgel.
Even that has proven unsatisfactory to some and we now have a global view encapsulated in phrases such as “white privilege,” expressed by writers such as Ta-Nehisi Coates, and found in the Black Lives Matter “Guiding Principles.” The words “systematic” and “racism” are joined, and America, past and present, is condemned as a whole (with precious few exceptions): entire segments of the non-black population and many institutions are indicted for their current racist being, not just their retrograde views. Connected as these charges are with ideas of structural injustice, indignant passions and passionate demands for sweeping changes naturally flow from them.
The Resistance uneasily combines the second and third visions, with the latest version providing new energy and arrogating to itself the radical moral high ground. Partisans and beneficiaries of the earlier (revised) version may see them as useful shock troops, while casting themselves as soberer heads more in tune with the ways of the world. But they are tactical allies, at the least. As for what will eventuate between the two, no one knows, but revolutions devouring their own is not out of the question. Possible too is “mainstreaming” the radical view, if it is not already occurring. For the foreseeable future, though, both will turn demanding Manichean gazes upon their country and their fellow citizens.
After race, sex and gender are central to this worldview, in fact arguably more fundamental. Here too the list of recent telling phenomena is well-known: Arizona and Indiana, with then-Governor Brewer and then-Governor Pence subject to intense pressure to scuttle modest religious protections modeled after federal law; Obergefell; and North Carolina public bathrooms. Here, as I said, we are on to something that is at the vital core of the Resistance mentality, even sacred to it. In the Supreme Court Ur-decision in this area, Griswold v. Connecticut, William O. Douglas intimated a (D. H.) Lawrencian religion of sex, one that subsequent court decisions have ratified and expanded, with Justice Kennedy become the poet-jurist of the unquestionable dignity of expressive intimacy in Lawrence v. Texas and Obergefell.
More generally, sexuality and gender are viewed through a lens combining nature and nurture, but always showing up as matter for the individual self, and not to be subject to any public criterion of judgment, save that of consent. Correlated to this positive view of human sexuality and gender as strictly matters of equality and freedom (understood in their most egalitarian and emancipatory senses) is antipathy toward anything or anyone who explicitly or inferentially does not share these morally homogenizing and individualistic views. So-called traditional views of sexuality, marriage, and family, and their typical supports, traditional religions, are l’infâme to be, if not crushed, legally brought to heel and socially shamed. Just read Justice Alito’s dissent in Obergefell or ask legal scholar Chai Feldblum and LGBTQ financial backer and strategist Tim Gill. Conversely, sexual and gender minorities that historically were subject to legal sanction and moral disapprobrium are not only to be legally protected (a welcome development), but also publicly celebrated, and incorporated as estimable models in educational curricula and the workplace. The Starbucks I frequent is a good example.
This attitude towards sex and gender can be cast in Tocquevillian and Durkheimian terms. The French political philosopher presciently noted that the democratic principles of equality, freedom, and consent would increasingly radicalize themselves over the course of democracy’s history, both in intension and extension. Equality and freedom would become detached from substantive content and traditional norms, and egalitarian consent would gain the whip-hand in private and social matters once enthroned in the authoritative political realm. In today’s public and private discourse about human sexuality, it is striking how often obvious biological and moral distinctions are denied or obscured, treated as ideational personae non gratae, and those who attempt to bring them into the conversation are accused of bigotry and worse. This starts with the most obvious fact of heterosexual intercourse’s procreativity and homosexual sex’s infecundity. There is a democratic moral dogmatism at work here, a prevenient vision of right and fact that is resistant to relevant evidence and arguments of certain sorts. Tocquevillian categories can help explain this resistance.
As for the sociologist Durkheim, he pointed out that even modern society would have its “sacred.” In Christopher Smith’s formulation,
[b]y “sacred,” I mean things set apart from the profane and forbidden to be violated, exactly what the sociologist Emile Durkheim meant by the term. Sacred matters are never ordinary, mundane, or instrumental. They are reverenced, venerated, and defended as sacrosanct by the social groups that hold them as sacred. . . . Sacred objects are hallowed, revered, and honored as beyond questioning or disrespect.
The foregoing phrase (“beyond questioning”) indicates why Socrates is not welcome when it comes to modern eros. In the domain of sexuality and gender, all too often magic words such as “love,” “equality,” “choice” and “fluidity” substitute for substantive argument or even thought. And the fundamental act of reasoning, making distinctions, is a priori suspected of being “invidious” and “judgmental”—and, as evidenced by vehement reactions, profaning something sacred.
I confess that in my judgment the ban placed on rational inquiry and candid discussion in this area of human life, with its tremendous importance for personal happiness and social continuity, is a grave cause for concern: both because of the strictures it places on reason itself and because of the obfuscation of human sexuality involved, which is particularly disorienting to young people. Insofar as it is wedded to this view, the Resistance is an enemy of the precious human faculty, reason, and disserves what it claims to champion, human sexuality in its complexity. Dogmatism always does that, even, perhaps especially, when done in the name of democracy’s great values.
In the course of the preceding reflections, religion and the Constitution came up, one as an object of antipathy, the other as a great engine in the advance of sexual egalitarianism. Next time I will attend to these transcendent, shaping features of our common life and the Resistance’s general attitude toward them.
 Douglas employed the term “sacred” twice in the decision: first, in the famous phrase “sacred precincts of the marital bedroom,” then later: “intimate to the degree of being sacred.” The first alluded to the traditional understand of human sexuality, the monogamous marital union and its “noble purpose,” the second (please note) derived sacredness from sexual intimacy. The latter, however, was not circumscribed by object, purpose, circumstance, or duration. Douglas exploited the prestige of the former to bring in and justify the latter. Subsequent decisions (Eisenstadt; Roe; Lawrence) will jettison the marital fig-leaf.
 Felblum: “I’m having a hard time coming up with any case in which religious liberty should win.” Quoted by Maggie Gallagher, “Banned in Boston,” The Weekly Standard, May 15, 2006. Gill: “We’re going to punish the wicked.” Andy Kroll, “Meet the Megadonor Behind the LGBTQ Rights Movement,” Rolling Stone, June 23, 2017.
 Christopher Smith, The Sacred Project of American Sociology (Oxford University Press, 2014), p. 1.