For over two centuries, The Constitution of the United States has provided the ultimate definition of the rights and freedoms of the nation’s citizens. Concurrently, the Supreme Court has served as the ultimate interpreter of The Constitution. The task of the Supreme Court is not to rule on guilt or innocence, rather it is to determine whether the decisions of lower courts are consistent with, or in violation of the rights and guarantees defined by the Constitution.
That no longer appears to be the case. Although the Constitution continues to provide the aforementioned ultimate definition, that has become a moot point; the nine justices charged with interpreting the Constitution now apparently see themselves as legislators.
Certainly not all the justices have forsaken their roles as interpreters, but on any given day, a majority appears to prefer making law to interpreting it. The recent decision on gay marriage is one such instance. While the Supreme Court decision is largely seen as a “victory” for gay couples seeking the same rights as heterosexual couples, it is a defeat for all Americans, regardless of sexual orientation. That defeat lies not in the content of the decision, but in the fact that the Supreme Court made it.
In his dissenting opinion, Justice Scalia stated, “Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.” Scalia also stated, “But what really astounds is the hubris reflected in today’s judicial Putsch. The five Justices who compose today’s majority are entirely comfortable concluding that every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’ permitting of same-sex marriages in 2003. They have discovered in the Fourteenth Amendment a “fundamental right” overlooked by every person alive at the time of ratification, and almost everyone else in the time since.”
Justice Roberts, also dissenting, stated, “The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent.”
What will be largely missed in the verbal thrust-and-parry over the decision is that the dissenting justices aren’t saying gay marriage should be illegal, they’re saying that the Supreme Court is not constitutionally empowered to make that decision.
According to the 14th Amendment, Section 5, “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” The noteworthy provision being referred to, as defined in Section 1 of the amendment is, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Congress, not the Supreme Court is specifically empowered to deal with state legislation that deprives a person of life, liberty or property. Hence Justice Scalia’s comment, “The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”
It is more than unfortunate that the dissenting opinions of four Supreme Court justices will be blasphemed by proponents of gay marriage and the majority opinions will receive the same treatment from those opposed. In the celebratory and hand-wringing dialogues of each side, a much larger issue is being ignored– that of the Supreme Court falling into a pattern of bending to public opinion and overstepping its bounds.
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