A recent judicial outrage is the decision of a federal judge that California's ban on gay marriage is unconstitutional. To reach that result the judge had to read the Constitution and find something somewhere in its wording which was intended to vindicate gay marriage against the will of the people to invalidate it. There is no such thing, not a single article, section, phrase, sentence or word. It is not there. Furthermore, the result prescribed by the judge could not possibly have been intended by the drafters or ratifyers of the Constitution or have been understood by them to be the consequence of their work. And the judge knew this, so he violated his oath of office. In over thirty states the people have rejected gay marriage. The Constitution of Massachusetts, where a right of gay marriage was decreed by judicial fiat, was drafted by John Adams, and anyone with even a passing acquaintence with the life and work of John Adams, and the times in which he lived, knows perfectly well that had the subject of gay marriage even occurred to him he would have written into that constitution a most emphatic prohibition. Yet the Supreme Judicial Court of Massachusetts decided that somewhere within the words of the state constitution is a validation of gay marriage. No there isn't. It was not intended by the drafters or ratifyers, or by the state legislature, or the governor, or the people of Massachusetts, who attempted to reverse the pro gay marriage ruling. Only a group of arrogant "philosopher kings" in black robes wanted it. In fact, not all gay people want it.
I am not concerned here with the merits of gay marriage, if any. I am concerned with what is happening when the majority of the people from coast to coast cannot prevail with democratic methods in the establishment of law. Here are the judges and here is the institution of gay marriage, unknown to every society, every culture, every religion, every legal system for all the thousands and thousands of years of recorded human history and disapproved by the people virtually wherever it has appeared; yet the people are said to have nothing to say about the form, character and core values of their society, not simply incidental attributes, when a handfull of judges disagree.
But isn't there some argument offered by the judges in defense of what they do? Yes, and while it takes somewhat different form with different words it can be reduced to the following views. There is contained in the fourteenth amendment to the United States Constitution, and elsewhere in the Constitution and in the various state constitutions, the requirement of equal rights and equal treatment under the laws, federal and state. No one quarrels with that. And everyone knows the purpose for which that principle became so endemic to the laws, the culture, and the sometimes turbulent history of the United States, wherein it was once disputed. It was intended to remove the disgrace of slavery from the national landscape. The thirteenth amendment abolished slavery directly, de jure, but the drafters knew how cleverly an intended result can be thwarted by those who may be intent on manipulation of words and evasion of principles. Left alone, the thirteenth amendment would not have been sufficient to achieve its intended result because de facto slavery would have replaced the de jure slavery which had been abolished. To head off and prevent such evasion equal protection clauses were placed in the federal constitution and those state consitutions in states where slavery had existed or was thought still threatened.
As time went on the principle of equal protection was extended to other classes of people; women, for example, in cases of sex discrimination. It was extended in other ways, usually producing benign results generally accepted by the people. Questions of meaning do arise and some of them are complex and difficult; yet however we may resolve constitutional questions at the margins of uncertainty it is perfectly clear that while judges have some latitude in matters of interpretation, construction and application of laws and constitutions they have no moral or legal authority to transform, by judicial fiat, the fundamental nature of the society they are supposed to serve in accordance with the oath they have taken.
These liberal judges habitually find a principle to exist in the constitution which is not there and never was and is not even implied or hinted at. The judge will opine that there exists no "rational" basis for banning gay marriage and that such a ban does not promote any "compelling state interest". He or she will decide what is a "compelling state interest" and that will determine the outcome of the case even though neither the words "compelling state interest" nor the concept is contained anywhere in the constitution. Let us be clear. When the people desire some result by direct vote or through their representatives they have, by the expression of that desire in the form of legislation, themselves decided what is a sufficient state interest to warrant state action and the word "compelling" adds nothing to the matter in most cases. A "state interest" is any interest which the people wish to advance unless it is incompatible with the constitution. In a narrow range of cases it might be true that something which would ordinarily be unconstitutional may pass muster because of extreme necessity, although even that principle is not found in the Constitution except in the case of the suspension of habeus corpus. If, for the sake of argument, we posit that extreme necessity can justify going around a principle which would ordinarily be a constitutional bar to some course of action (a view which I believe is acceptable) resort to to the concept of a "compelling state interest" might make sense, though reliance on a validating exception in extremis would make more sense. But in the ordinary course of events the mere fact that the people want something to be done or not done, without anything more than that, should be enough to protect it from having to show any "compelling state interest". In other words, although perhaps the government can legitimately silence dissent during a violent revolution by a showing of a "compelling state interest" there should be no need to show it in the case of a bar against gay marriage because the courts are not in that case presented with a crisis or a measure which is clearly unconstitutional. And certainly an institution as sacrosanct as marriage over such a long period of time in so many regions, nations and cultures of the world can be protected against any charge of irrationality. Added to all the above, the liberal judge will frequently opine that gay marriage is a "fundamental" right. Really? If it is "fundamental" why did no one know about it prior to when the Supreme Court of Hawaii propounded the principle circa 1990? How can a right so "fundamental" have escaped the attention of all of the constitution's drafters and ratifyers and every recoginzed philosopher and religious leader in the history of the world from Plato and Moses to the present? When someone has to resort to such silliness to make his case, that case is not terribly solid.
You will also hear the argument that we have a "living constitution", the meaning of which will change from time to time. No, we do not, not in that sense. The application of the constitution can sometimes change through changes in circumstances but never through the mere passage of time. When each state is allocated two senators it will not become three or six senators through the passage of time. What can change is the application of certain principles, though not the spirit or intent. For example, the Constitution prohibits cruel and unusual punishment. At one time confinement to bread and water might not have been considered "cruel and unusual". It has long since become at least unusual. Furthermore, someone has to decide what is "cruel". Obviously the drafters left that to the reasonable discretion of judges and legislatures. As Abraham Lincoln pointed out in his first inaugural address, March 4, 1865, no document of reasonable length can anticipate in detail every question which will arise under it. Judges are not encyclopedias or dictionaries. There were expected to be reasonable people who truly intended to vindicate not what they wanted to be the law, but the law as it came to them under circumstances then existing.
Why are appellate courts even permitted, ever, to invalidate a federal or state law duly enacted? There are two reasons. First, Americans do not want a temporary majority animated by mass hysteria or thoughtless excitement to trample on rights plainly protected by the constitution and intended to be protected by the drafters and ratifiers thereof. The slow and ponderous rejection of gay marriage by a majority of the people in state after state hardly amounts to the sort of mass hyesteria and overreaction which judicial revue was intended to head off and obviate. Second, there are genuine gray areas in the application of some constitutional provisions. For example, although the constitution does guarantee access to legal counsel for anyone accused of a crime, it does not expressly require government to locate and pay for counsel when the defendant can do neither. That question invited a legitimate difference of opinion which was fortunately resolved in a positive way by the Supreme Court in Gideon vs. Wainright and legal counsel are now provided gratis to those unable to afford counsel with their own resources. But it should be clearly understood that if there is ever to be gay marriage in this country there must either be a massive and radical shift in the people's core values or a constitutional amendment to achieve it. Otherwise the imposition of gay marriage on an unwilling populace represents a usurpation of power by tyrants.
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