Do the states have the right to outlaw same-sex marriage?
Not long ago the question would have been seen as absurd. For every state regarded homosexual acts as crimes.
Moreover, the laws prohibiting same-sex marriage had all been enacted democratically, by statewide referenda, like Proposition 8 in California, or by Congress or elected state legislatures.
But today rogue judges and justices, appointed for life, answerable to no one, instruct a once-democratic republic on what laws we may and may not enact.
Last week, the Supreme Court refused to stop federal judges from overturning laws banning same-sex marriage. We are now told to expect the Supreme Court itself to discover in the Constitution a right of men to marry men and of women to marry women.
How, in little more than half a century, did the American people fall under the rule of a judicial dictatorship where judges and justices twist phrases in the Constitution to impose their alien ideology on this once-free people?
What brings the issue up is both the Court decision on same-sex marriage, and the death of my friend, Professor William J. Quirk, of the South Carolina University School of Law.
In "Judicial Dictatorship" (1995), Bill wrote of the revolution that had been imposed against the will of the majority, and of how Congress and the people might rout that revolution.
The instrument of revolution is judicial review, the doctrine that makes the Supreme Court the final arbiter, the decider, of what the Constitution says, and cedes to the Court limitless power to overturn laws enacted by the elective branches of government.
Jefferson said that to cede such authority to the Supreme Court "would place us under the despotism of an oligarchy." Was he not right?
Consider what has transpired in our lifetime.
The Supreme Court has ordered the de-Christianization of all public institutions in what was a predominantly Christian country. Christian holy days, holidays, Bibles, books, prayers and invocations were all declared to be impermissible in public schools and the public square.
Secular humanism became, through Supreme Court edict, our established religion in the United States.
And the American people took it.
Why was there not massive civil disobedience against this anti-Christian discrimination, as there was against segregation? Why did Congress, which has the power to abolish every federal district and appellate court and to restrict the jurisdiction of the Supreme Court, not act?
Each branch of government, wrote Jefferson, is "independent of the others and has an equal right to decide for itself what is the meaning of the Constitution in the cases submitted to its action."
"No branch has the absolute or final power to control the others, especially an unelected judiciary," added Quirk.
In 1954, the Supreme Court ordered the desegregation of all pubic schools. But when the Court began to dictate the racial balance of public schools, and order the forced busing of children based on race across cities and county lines to bring it about, a rebellion arose.
Only when resistance became national and a violent reaction began did our black-robed radicals back down.
Yet the Supreme Court was not deterred in its resolve to remake America. In 1973, the Court discovered the right to an abortion in the Ninth Amendment. Then it found, also hidden in the Constitution, the right to engage in homosexual sodomy.
When Congress enacted the Defense of Marriage Act, Bill Quirk urged it to utilize Article III, Section 2 of the Constitution, and write in a provision stripping the Supreme Court of any right to review the act.
Congress declined, and the Court, predictably, dumped over DOMA.
Republican presidents have also sought to curb the Supreme Court's aggressions through the appointment process. And largely failed.
Of four justices elevated by Nixon, three voted for Roe. Ford's nominee John Paul Stevens turned left. Two of Reagan's, Sandra Day O'Connor and Anthony Kennedy, went wobbly. Bush I's David Souter was soon caucusing with the liberals.
Today, there are four constitutionalists on the Court. If the GOP loses the White House in 2016, then the Court is gone, perhaps forever.
Yet, the deeper problem lies in congressional cowardice in refusing to use its constitutional power to rein in the Court.
Ultimately, the failure is one of conservatism itself.
Indeed, with neoconservatives in the van, the GOP hierarchy is today in headlong retreat on same-sex marriage. Its performance calls to mind the insight of that unreconstructed Confederate chaplain to Stonewall Jackson, Robert Lewis Dabney, on the failure of conservatives to halt the march of the egalitarians:
"American conservatism is merely the shadow that follows Radicalism as it moves forward towards perdition. It remains behind it, but never retards it, and always advances near its leader. ... Its impotency is not hard, indeed, to explain. It is worthless because it is the conservatism of expediency only, and not of sturdy principle. It intends to risk nothing serious, for the sake of the truth, and has no idea of being guilty of the folly of martyrdom."
Amen.
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