It’s been called a victory for America. Pardon me, Mr. President,
for not understanding that statement.
We are not talking about the moral essence of same-sex
marriage. We are not talking about love or the true definition of marriage.
We are talking about power. The central question of all political
science—who rules?
We are talking about law. The interpretation of already existent
law. The idea behind the power of the Supreme Court’s ability to declare a law
unconstitutional is ironically accepted based purely on the precedence that President
Thomas Jefferson upheld a court’s declaration on unconstitutionality in the Marbury
v Madison case of 1803. We don’t question this power because the precedence has
allowed the Court to act as judges and sentinels of the Constitution,
protecting the passages created by the founders and amended by the people. The
idea is that no one should be allowed to twist or misapply established laws in
accordance with a political agenda that changes as constantly as the party
persuasions of the senate.
But it is not actually a constitutionally guaranteed right—judicial
Review. That’s never even mentioned within the document it is intended to
protect. I’m serious. Read it.
And it was never intended to be. The Supreme Court should
not participate in the law-making or law-enforcing process. It is absolutely
and completely outside the realm of even precedent-given powers. Because the
very purpose of the Supreme Court is make sure that while the people do rule,
there is always an open opportunity for the principles of democracy to work
through dedicated dissenters—the hope that they can become the new majority one
day.
Let me reiterate for clarification.
Judges don’t make
laws. They don’t enforce laws. And they are lucky that we are even letting them
interpret laws for constitutionality. They have no actualized enforcing power
outside of the very fact that the other two branches of government have
traditionally accepted this ability. But it is a theoretical right never
explicitly granted to them—not even in the Constitution itself.
When studying it, the best we can admit is that the power of
the justices to declare a law unconstitutional is mostly based on a court case
in which the justices themselves decided they had an “implied” power to do so. In
short, a power they gave themselves. I’m not necessarily arguing against the
logic of Marbury v Madison. But I am pointing out the irony of a Supreme Court
that tries to expand power that they only “implied” to themselves to begin
with.
Interestingly, Supreme Court decisions that occurred before
Marbury v Madison are actually fascinating to look at and represent a greater sensibility
towards the understanding of the founder’s intent when creating the judicial branch.
It wasn’t all about judicial review, let alone judicial activism. But it did
have a lot to do with the traditional judiciary role and the power of the
courts in trials. And if you don’t believe me, look it up. Here’s a starter for
you: (But don’t forget to check the sources!)
The point, then, is that considering the historical source
of the Court’s power, the very idea that they can make a decision to define marriage
across states lines in opposition to the very democratically chosen laws of many
of the people themselves is absurd.
I’m not talking about whether same-sex marriages are immoral
or not. I’m not talking about whether or not it should be legalized. Because
I’m not talking about the legislative process at all. Justice Roberts
was right in his dissent. The decision has “nothing to do with the
Constitution,” (http://www.cnn.com) and goes
outside of every single possible right that could even be implied to the
members of the Supreme Court. They have no judicial authority over the laws
established by the people. They merely interpret them. And protect them.
But wait, you might say, the decision was based in part on
an interpretation of the 14th amendment to the Constitution. The
idea that no citizen can be denied the “privileges
or immunities of citizens of the United States; nor shall any State deprive any
person of life, liberty, or property, without due process of law; nor deny to
any person within its jurisdiction the equal protection of the laws.”
(www.archives.com).
This amendment was, of course, made before even women had
the right to vote. And as Justice Scalia pointed out quite clearly—despite the
critiques he has received for doing so sardonically—all laws interpreted by
courts are meant to be understood within the context of how they were written.
If there arises an issue that was non-existent during the founding years, it is
to be established by the current citizenry in order for justices to have the ability
to interpret those newly constructed laws in the future. Meaning that the
battle should take place in the states, among the people, and even through the amendment
process, not the judicial one.
The five justices who decided in favor of legalizing same-sex
marriages across the country do not believe in this limitation to their authority.
They do not believe that they need to be strict in their interpretation of the US
Constitution. This is because they think that to protect basic human rights,
they have to liberally interpret laws in accordance with the changing ideas and
opinions of the people.
But that is, point blank, not their role. We, the people,
are the ones in charge of changing laws in accordance with our changing
culture. They are not protectors of human rights. They are the defenders of
human law.
We, the people, are in charge of lobbying and fighting for
changes to the established order of things.
But a Supreme Court justice, more than anything else, is the
defender of the established order. Therefore, when laws come in conflict with the
opinion of the people, he must defend the legal system in order to protect the
established law. He cannot, under any circumstance, make decisions contrary to
the established legal form. He must turn a blind eye to the morality of all
things except the vitality of the written law. If laws of the past were wrong
or immoral, he is not to know it or see it, but rather to leave the current
moral dilemma in the hands of the people themselves.
The only way in which a Supreme Court justice should override
the will of the people—as the Supreme Court just did today in overturning the
decisions of a number of US states—is if the political majority is supporting a
position that goes contrary to established law.
This means that in the case of overturning certain laws
banning same-sex marriage, the court would of necessity need to provide a
decision that rationalized how same-sex marriage is a traditionally protected
right under the constitution. But quite simply it is not. All extended rationalization
of the 14th amendment cannot possibly be interpreted to assume that
the political leaders who created a law targeted at creating citizenship for African
Americans was also intended to defend the constitutionality of marriage between
two member of the same sex. It wasn’t even a public issue of that generation.
It could not have been foreseen.
And that means that, as a new issue, the Supreme Court has
no say over the issue. They have no authority. It is not part of established or
protected law.
So it should be left up to the people. Period.
It’s that easy. We just want to protect the greatest tenant
of American political democracy, which is, in effect, that the only real right of
the minority is the ability to one day become the majority. To freely fight for
it through a legislative political process of voting, lobbying, etc.
No member of the Supreme Court, no justice at all, should
have the ability or power to inhibit a basic tenant of democracy. I don’t care
what you believe or support in regards to marriage. That’s not what this is
about.
How can a Supreme Court decision that redefines constitutional
principles in opposition to the current voting pattern of the people be seen as
a victory in any sense of the word?
If this issue had been decided by the people, then I can
understand. I would allow for defenders of same-sex marriage to feel a sense of
victory and security.
But there can be none when the very checks and balances of a
fragile political system are already being thrown aside in favor of majoritarian
tendencies to supremacy. Or maybe this isn't even about democracy any more.
Five people made a decision that just redefined the nation.
That’s a lot of power. And frankly, I don’t think any one of the 39 signers of
the US Constitution ever thought that such a level of power or influence maintained
by such a small number could ever, under any circumstance, be seen as constitutional.
It goes against the very fabric of the Constitution itself.
Way to go, justices, you just tossed aside the source of your own authority.
But it never even gave you that power in the first place.
So who rules now?
Great Points!
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