As quickly as possible, I want to join in
condemning the tyrannical ruling of the Supreme Court this morning on same-sex
marriage. It is a judicial coup
against constitutional democracy the likes of which we have not seen since Roe v Wade.
It cries out for resistance and nullification not
because of the issue of same-sex marriage (If people of various states decide to recognize gay marriage through
a democratic process, that is their
political and constitutional right.), but because of the importance of
constitutional democratic self-rule. I have therefore already called on Governor Abbott to resist and defy
this ruling.
Justice Scalia’s dissent says it better than I can
and is one for the ages. Justice
Scalia on this morning’s “judicial putsch”:
I
join THE CHIEF JUSTICE’s opinion in full. I write separately to call attention
to this Court’s threat to American democracy.
The
substance of today’s decree is not of immense personal importance to me. The
law can recognize as marriage whatever sexual attachments and living arrangements
it wishes, and can accord them favorable civil consequences, from tax treatment
to rights of inheritance….
So
it is not of special importance to me what the law says about mar- riage. It is
of overwhelming importance, however, who it is that rules me. Today’s decree
says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a
majority of the nine lawyers on the Supreme Court. The opinion in these cases
is the furthest extension in fact— and the furthest extension one can even
imagine—of the Court’s claimed power to create “liberties” that the Constitution
and its Amendments neglect to mention. This practice of constitutional revision
by an unelected committee of nine, always accompanied (as it is today) by
extravagant praise of liberty, robs the People of the most important liberty
they asserted in the Declaration of Independence and won in the Revolution of
1776: the freedom to govern themselves….
Until
the courts put a stop to it, public debate over same-sex marriage displayed
American democracy at its best. Individuals on both sides of the issue
passionately, but respectfully, attempted to persuade their fellow citizens to
accept their views. Americans considered the arguments and put the question to
a vote. The electorates of 11 States, either directly or through their
representatives, chose to expand the traditional definition of mar- riage. Many
more decided not to. Win or lose, advocates for both sides continued pressing
their cases, secure in the knowledge that an electoral loss can be negated by a
later electoral win. That is exactly how our system of government is supposed
to work….
But
the Court ends this debate, in an opinion lacking even a thin veneer of law.
Buried beneath the mummeries and straining-to-be-memorable passages of the
opinion is a candid and startling assertion: No matter what it was the People ratified, the Fourteenth Amendment
protects those rights that the Judiciary, in its “reasoned judgment,” thinks
the Fourteenth Amendment ought to protect. That is so because “[t]he generations
that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not
presume to know the extent of freedom in all of its dimensions . . . . ” One
would think that sentence would continue: “. . . and therefore they provided
for a means by which the People could amend the Constitution,” or perhaps “. .
. and therefore they left the creation of additional liberties, such as the
freedom to marry someone of the same sex, to the People, through the
never-ending process of legislation.” But no. What logically follows, in the
majority’s judge-empowering estimation, is: “and so they entrusted to future
generations a charter protecting the right of all persons to enjoy liberty as
we learn its meaning.”15 The “we,” needless to say, is the nine of us. “History
and tradition guide and discipline [our] inquiry but do not set its outer
boundaries.”16 Thus, rather than focusing on the People’s understanding of “liberty”—at the time of
ratification or even today—the majority focuses on four “principles and
traditions” that, in the majority’s
view, prohibit States from defining marriage as an institution
consisting of one man and one woman.
This
is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our
system of government. Except as limited by a constitutional prohibition agreed
to by the People, the States are free to adopt whatever laws they like, even
those that offend the esteemed Justices’ “reasoned judgment.” A system of
government that makes the People subordinate to a committee of nine unelected
lawyers does not deserve to be called a democracy….
And
to allow the policy question of same-sex marriage to be considered and resolved
by a select, patrician, highly unrepresentative panel of nine is to violate a
principle even more fundamental than no taxation without representation: no social
transformation without representation.
II
But
what really astounds is the hubris reflected in today’s judicial Putsch. The
five Justices who compose today’s majority are entirely comfortable concluding
that every State violated the Constitution for all of the 135 years between the
Fourteenth Amendment’s ratification and Massachusetts’ permitting of same-sex
marriages in 2003. They have discovered in the Fourteenth Amendment a
“fundamental right” overlooked by every person alive at the time of ratification,
and almost everyone else in the time since. They see what lesser legal minds—
minds like Thomas Cooley, John Marshall Harlan, Oliver Wendell Holmes, Jr.,
Learned Hand, Louis Brandeis, William Howard Taft, Benjamin Cardozo, Hugo
Black, Felix Frankfurter, Robert Jackson, and Henry Friendly— could not. They
are certain that the People ratified the Fourteenth Amendment to bestow on them
the power to remove questions from the democratic process when that is called
for by their “reasoned judgment.” These Justices know that limiting marriage to one man and one woman is contrary
to reason; they know that an
institution as old as government itself, and accepted by every nation in
history until 15 years ago cannot possibly be supported by anything other than
ignorance or bigotry. And they are willing to say that any citizen who does not
agree with that, who adheres to what was, until 15 years ago, the unanimous
judgment of all generations and all societies, stands against the Constitution.
The
opinion is couched in a style that is as pretentious as its content is
egotistic… The Supreme Court of the United States has descended from the
disciplined legal reasoning of John Marshall and Joseph Story to the mystical
aphorisms of the fortune cookie.
Hubris
is sometimes defined as o’erweening pride; and pride, we know, goeth before a
fall. The Judiciary is the “least dangerous” of the federal branches because it
has “neither Force nor Will, but merely judgment; and must ultimately depend
upon the aid of the executive arm” and the States, “even for the efficacy of
its judgments.” With each decision of ours that takes from the People a
question properly left to them—with each decision that is unabashedly based not
on law, but on the “reasoned judgment” of a bare majority of this Court—we move
one step closer to being reminded of our impotence.
----
Indeed, the Supreme Court with this ruling is
asking for a Constitutional crisis, and one it is not guaranteed to win.
But, more likely, we have lost that much more of
our constitutional republic – and that to cheers.
