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?
"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.