Strengthening Constitutional Self-Government

No Left Turns

Same Sex Marriage

The Massachusetts Supreme Court has ruled that same-sex marriage is a Constitutional right.

Discussions - 6 Comments

The moral implications of this decision are shocking. The advocates of incestuous marriages and polygamy really have a foot to stand on now. But, what I am most disturbed by in the ribald judicial activism that has a naked disregard and even contempt for the democratically elected people to decide on public policy and police powers rooted on their beliefs, virtues, values, and conceptions of truth. I am very much in support of a constitutional amendment at the state and federal level to shut these judges down. Although maybe they will declare the constitution unconstitutional!!! I have to laugh thinking about Hamilton’s Federalist #78 and his comment about the "least dangerous branch." So much for republican self-government based upon the consent of the governed. Now, it’s government by unelected officials who are not subject to restraint or answerable to the people in any practical sense and decide what they think is best. "Force them to be free" seems to be the guiding philosophy.

Tony, I agree with your point whole heartedly. However, I think Hamilton is still correct that the courts constitute the leas dangerous branch. If the executive and legislative powers in each state or in the nation refused to abide by these absurd decisions the court would have no power whatsoever. Sure, the judgement in each case could still bind, but that judgement does not have to become a universal principle binding on the legislature or the executive: the ruling could be wrong after all! In essence, it is only the other two branches of the government that have the power to enforce these cases. Remember, for the founders, it was all three branches that were supposed to protect the rights of the people, and not just the courts.

Indeed, Rob, you remind me of a very important point that the Founders, Andrew Jackson, and Abraham Lincoln (in his First Inaugural Address), among other statesmen have made that it is the responsibility of ALL of the branches of government to interpret and enforce the Constitution (or state constitutions). Only in recent times have we allowed the other branches to kowtow to the judiciary and abdicate their responsibilities to the fundamental law of this country. Even if Andrew Jackson didn’t really say, "John Marshall has made his decision, now let him enforce it," it is a principle that would make for a nice balancing act of the other branches. Only in recent times have we allowed the decisions of the courts to have the force of law in this country. Courts do have the responsibility to decide cases and prevent democratic tyranny by disallowing laws that conflict with fundamental law, but they should not write the law or make policy, which is what they do. Citizens are then left with the only possibilities of amending fundamental law or impeaching judges more often when they go beyond the Constitution (which would be a healthy reminder every now and again). So, unless supermajorities can amend constitutions, judges pretty much have free rein. The question is, are citizens in a self-governing republic going to allow the violations of separation of powers and judicial activism/tyranny?

Now, having said that, since we are a republic, I would definitely support the citizens of a state or the whole country allowing gay marriages if it is their will based upon their consent and morals. I think that it would be morally wrong and not not in fact pass but in a republic the will of the majority reins. If that is what the citizens want, then they must live with the consequences of their decision and the kind of society they have created. Abortion would be another case of judicial activism in which the courts overturned the laws of over forty state legislatures in their legitimate democratic exercise of police powers. By ignoring federalism and by making up rights not in the Constitution, the judges acted arbitrarily in creating the "right" to abortion. IF the Court had instead deferred to the state legislatures, who then decided abortion was a great moral good for the freedom of humankind and voted for it, then fine - that’s the kind of society that the people want. I may not like it and find it morally repugnant, but again, that is the will of the people. In other words, a republic!

"I may not like it and find it morally repugnant, but again, that is the will of the people. In other words, a republic!"

I’m afraid I disagree. American republicanism is not pure majority will. The people operate not only within the confines of the Constitution, but more fundamentally within the bounds set by the "laws of nature and nature’s God." Voting can never make something that is wrong, right. There is no right to do a wrong.

I believe this is Lincoln’s entire argument against Douglas. To not care whether slavery is voted up or voted down would destroy the principle that "all men are created equal." Certainly, the people must recognize that slavery exists and it is an evil that has to be dealt with gradually to protect the rights of the slaves and the freemen, but settlers in Kansas or Nebrask had no right to vote slavery up or down; constitutionally or otherwise.

I think the same applies here. Even by voting for gay marriage, the people cannot legitimate it as an institution. Such a vote undermines the entire structure upon which that very right to vote exists! Republicanism must be understood in terms of man’s natural rights and the natural law in order for it to be just.

Rob, I see your point and agree that as Washington said in his Farewell Address and Lincoln echoed in the Lincoln-Douglas debates that religion and morality that supports natural law and objective truth are essential for self-government to survive. I agree wholeheartedly and am a firm believer in objective, versus subjective or relativist, truth.

My point was simply this. The beauty of self-government is that we, not some unelected officials, determine the kind of republic that we will have, or whether, as you rightly point out, the whole damn experiment in republican liberty will fail. I will also pray, argue, and fight within every legal means, and perhaps through civil disobedience in the tradition of MLK in a "Letter from Birmingham Jail" against immorality whether same-sex marriages, abortion, or the legalization of murder. But, WE, the citizens in a republic rooted upon majority rule, whether to create an enduring republic or a failed "city upon a hill" that ruins self-government for the world by setting a poor example, should be the ones to determine which it will be. That was essentially my point. Clearly, the ideal laid down by the Founders is republican self-government based upon the consent of the governed, and governed by a duty and responsibility to freedom tempered by morality, reason, justice, and a higher law. At least, that what was the Declaration of Independence said the last time I read it. Rob, thank you for challenging me and forcing me to clarify my thoughts.

Tony, no problem. It helped me as well.

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