In 1866, when members of the 39th Congress of the United States submitted the Constitution's 14th Amendment to state legislatures for ratification, they would have been stunned to learn that they had just written a provision mandating that homosexual sex be treated on the same moral plane as heterosexual sex. On Friday, Oct. 21, the Kansas Supreme Court, ruling under the Supreme Court precedent of Lawrence v. Texas (2003), decided that the 39th Congress meant just that. A Kansas law penalizing statutory homosexual rape more severely than statutory heterosexual rape was struck down under the 14th Amendment's "equal protection" clause.
The 14th Amendment states, "No State shall … deny to any person within its jurisdiction the equal protection of the laws." The amendment was specifically designed to protect freed slaves in the aftermath of the Civil War. In particular, the amendment was designed to prevent states from refusing to enforce criminal and civil laws when the victim was black. The 14th Amendment did not abolish segregation in any way, shape or form: Many Northern states, after ratifying the amendment, continued to segregate their public schools.
Over time, the Supreme Court broadened the scope of the "equal protection" clause of the 14th Amendment. The original meaning of the clause was discarded in favor of more expansive interpretations, most notably in Brown v. Board of Education. In ruling state-sponsored segregation unconstitutional under the 14th Amendment, the Supreme Court disconnected the "equal protection" clause from its history and context. In Brown, the outcome (desegregation) was morally unassailable. But by moving above and beyond the Constitution in favor of a higher moral goal, the Supreme Court allotted itself ultimate power: final lawmaking authority. In doing so, the Supreme Court stomped on the most important right for all Americans: their right to vote for duly elected representatives, and the right of those representatives to legislate under the Constitution.
In Brown, of course, the evil destroyed (segregation) may indeed have outweighed the popular right to vote on policy. It is difficult to argue that anyone should have refrained from protesting the sin of state-sponsored segregation, no matter what their assigned constitutional role. By putting its own morality ahead of both the Constitution and the American people, however, the Court set a dangerous precedent. Now the Court, in the name of its own morality and under the rubric of the "equal protection" clause, could overrule anything.
Since Brown, that is exactly what has happened. As the constituency of the Court has changed, interpretation of the Constitution has changed. The Court has arrogantly enforced its own morality. "Equal protection" is no longer a simple bar against racist law enforcement; it is no longer even restricted to race itself. "Equal protection" now means that any law classifying groups differently must meet the Supreme Court's moral standards. Of course, all laws inherently classify groups differently. Murder laws will classify murderers differently than law-abiding citizens. Such laws have always been constitutional. But members of the Supreme Court must now personally agree that legal classifications meet their own moral standards.
In Bowers v. Hardwick (1986), for example, the Court declared that a Georgia statute criminalizing sodomy did not violate the "equal protection" clause. Justice White, writing for the majority, explained, "In 1868, when the 14th Amendment was ratified, all but five of the 37 States in the Union had criminal sodomy laws. In fact, until 1961, all 50 States outlawed sodomy, and today, 24 States and the District of Columbia continue to provide criminal penalties for sodomy performed in private and between consenting adults … Against this background, to claim that a right to engage in such conduct is 'deeply rooted in this Nation's history and tradition' or 'implicit in the concept of ordered liberty' is, at best, facetious."
By 2003, a constitutional right to engage in sodomy had been discovered. What changed between 1986 and 2003 to bring about this reversal? Nothing, except the constituency of the Court. And so the Constitution magically changed. Personal politics of the justices trumped the fully constitutional will of the people.
Nothing gives the Supreme Court power to overrule popular legislation wherever it pleases. The Constitution does not grant unlimited power to the Supreme Court. We live in a republic, not an oligarchy. No matter whether the Court considers the law in Kansas abhorrent or praiseworthy, it is none of its business under the Constitution. We must trust the people more than we trust tyrants. Anything less is tyranny.
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