At least in your legislature, party C gets to testify.

The main shift with the rise of religious freedom has been to transfer over to the state the responsibility of policing the boundaries of what actions are permitted by the community’s shared ideology of political legitimacy. This job remains, and always must remain by the nature of the case, essentially an exercise in moral reasoning. But this particular branch of moral reasoning isn’t taken to be a specifically religious field of inquiry anymore.

The novelty in the 20th century has been the further delegation of this job, at least to a very large extent although not totally, from the state in general to the courts in particular. And I think Jay is right that the moral high ground the courts gained during the civil rights struggle is a major force behind that – the nation must have an arbiter of moral law (at least insofar as moral law sets boundaries for politics) and here we have the elected branches comprehensively failing to perform this function, while the courts did perform it. And ultimately what this really means (since we’re talking about elected versus unelected branches) is the people losing moral confidence in themselves – they don’t trust themselves to elect leaders who will police the boundaries of political legitimacy. Robert Nagel has written some really smart stuff arguing just this case.

It should be acknolwedged that the people do not in fact do a particularly admirable job of electing morally good leaders. But the problem, of course, is that judges are not really much better – they did a better job in the case of civil rights, but I don’t see much evidence that they’re morally superior generally. And transferring power to unelected judges removes all effective accountability. Judges have seized this power and set themselves up as an unaccountable ruling class, and that’s worse than leaving things in the hands of the elected and therefore accountable politicians (however flawed they may be).

The transfer of power was also encouraged by the fact that judges are selected and trained in ways that make them especially good at some aspects of moral reasoning, since most of the same skills that make a good lawyer also make a good moral philosopher (e.g. the ability to interpret ambiguous language, the ability to apply general normative principles to specific cases). If the state wants to delegate the job of moral reasoning and it can’t delegate this job to religious leaders because we believe in freedom of religion, judges do seem like the natural choice.

But judges are only better at some aspects of moral reasoning. They’re actually especially bad on some other aspects – most importantly, the fundamental moral principles that govern political action must be grounded in the moral consensus of the community and not in some esoteric philosophical theory that is only known to an elite class, still less in the selfish interests of a political faction that captures the courts.

The clear conclusion is that the job of policing the boundaries of what actions are morally permissible under the community’s shared ideology of political legitimacy is one that cannot be safely delegated to anyone. It must be the general duty of the whole government, just as obedience to the constitution and the laws is the general duty of the whole government.