With the Supreme Court's decision, striking down the Texas anti-sodomy law as an unconstitutional stricture on the liberty of homosexuals, conservatives fear that all state laws banning gay marriages will fall.
They are right to be alarmed. Three-dozen states may have enacted laws defining marriage as solely between a man and woman, but those statutes could be swept away by five justices. Should the court decide that homosexuals have not only a right to engage in consensual sex, but a right to solemnize their unions, what elected legislators decide will not matter.
Why not? Because we no longer live in a constitutional republic.
In a brief brilliant essay, "The 'Happy Convention,'" William Quirk, author of "Judicial Dictatorship," describes how Americans now live under a "convention" that is a fraud upon the Constitution our forefathers crafted.
Our original Constitution divided the powers of the government and put restrictions on those powers, in a Bill of Rights, and in the retention by the states of much of their sovereign power.
Lincoln's War overthrew that Constitution. When 11 "free and independent states" sought peacefully to depart from the Union, they were dragged back in, by invasion and war. By 1884, Woodrow Wilson was writing in his "Congressional Government," "we are really living under a constitution essentially different from that which we have been so long worshiping as our own peculiar and incomparable possession."
The "noble charter" of the Philadelphia Convention is still our Constitution, Wilson continued, but it is now "rather in name than in reality." While the outward form of the Constitution remains one of a nicely adjusted ideal balance, Wilson added, "the actual form of our present government is . . . a scheme of Congressional supremacy."
After World War II, that second Constitution gave way to a third, an unwritten, "Happy Convention," in Quirk's phrase. By the terms of that convention, Congress cedes its power over war, peace and foreign policy to the president, and its power to decide issues of race, gender, religion, culture and morality to the Supreme Court.
Why did Congress cede its powers? For the most basic of reasons: survival. Decisions on war, peace, race, religion, morality, culture and gender, divide us deeply and emotionally. These are issues where one vote could cost scores of congressmen their seats. Why not turn them over to justices, appointed for life, who never face the voters and who relish remaking our society according to their own vision and beliefs?