"Conservatives and liberals fight like cats and dogs and disagree on almost everything," writes Quirk, "but, oddly, agree the Court should have the authoritative role the unwritten constitution provides for. They just disagree on who should control the Court."
Why do conservatives and liberals agree that the court should decide such issues? Because both "share an abiding fear and distrust of American majority culture."
Does he not have a point? Today, we read that George W. Bush and his advisers are terrified of having gay marriage become an issue in 2004, as they will have to oppose such marriages as immoral, in order to secure their political base, while the Big Media lashes them as bigots.
The Bushites are delighted to have questions of race, religion and morality settled by courts. For when courts decide, politicians can throw up their hands and say, "We may not like it, but there is nothing we can do. The court has the final say."
But, as Quirk argues, the court does not, in the true Constitution, have the final say. As Jefferson refused to enforce the Alien and Sedition Acts, President Bush could refuse to take down the Ten Commandments from that Alabama court house, should the Supreme Court order him to do so.
In our written Constitution, the doctrine of judicial supremacy does not exist. Congress has the power to abolish all federal courts except the Supreme Court and to limit that court's jurisdiction to "cases affecting Ambassadors, other public Ministers, and Consuls, and those in which a State shall be a party."
"The Court has jurisdiction, in all other cases," writes Quirk, "only if Congress grants it."
Rather than going down the endless road of a constitutional amendment to protect marriage, as we failed to do, in protecting the flag, Congress should re-enact the Defense of Marriage Act, restricting marriage to men and women, and add this provision: "This law is not subject to review by the U.S. Supreme Court."
If Congress will not confront the Court, the people should confront the Congress. For our national sovereignty rests with the people, who took it away from King George and Parliament and lodged it in a written Constitution, not in this insiders deal by which we are ruled today.