Whatever one’s views on gay marriage, it is appropriate — in a sense — that this issue, which was illegitimately thrust onto the scene by willful judges at the state level, has now been illegitimately advanced by willful judges at the federal level. Accordingly, gay marriage has been propelled forward at the expense of the separation of powers, and of applying state constitutions, and now the federal Constitution, as written. Even the policy’s advocates should view this as an unduly high price to pay.
In the coming days, the focus will perhaps principally be on whether five Supreme Court justices were correct to claim that the right to liberty, as expressed in the Fifth Amendment (and later in the Fourteenth Amendment), covers a desire to marry a member of one’s own sex and have that marriage recognized for purposes of federal law. But from a legal standpoint, the far more important issue is those five justices’ decision to follow the Court’s own precedent, established in Dred Scott v. Sandford (1857) and affirmed Roe v. Wade (1973), of ignoring the Constitution’s subsequent language — or, more exactly, of transforming that language to suit the Court’s own purposes and accentuate its own power.
In the midst of a list of certain guarantees of protections in a court of law (no double-jeopardy, no requirement of self-incrimination), as well as under the common law (no property taken for public use except with just compensation), the Fifth Amendment to the Constitution guarantees the following: No person shall “be deprived of life, liberty, or property, without due process of law.”
Those last five words are crucial. The Constitution does not overarchingly prevent the deprivation of life, liberty, or property. (Indeed, the subsequent provision outlines terms under which property can legally be taken.) Rather, it indicates that any deprivation of life, liberty, or property must follow the “due,” or appropriate, legal process — such as enacting a duly passed law, which is what occurred in this instance.
However, from Dred Scott onward, the Court has effectively ignored these last five words of this constitutional provision — to its own great benefit. More exactly, it has effectively transformed those words into a guarantee of due substance, rather than due process — while setting itself up as the ultimate arbiter of what substance the law must contain. Rather plainly, deciding upon the substance of a law is a legislative role, not a judicial one. But the Court has been illegitimately overturning legislative determinations about what the substance of laws should be ever since it first thought to do so, at least in a very prominent way, in Dred Scott.
In Dred Scott, the Court substituted its own will for that of Congress in decreeing that the substance of the law must include the protection of slavery throughout the territories. Over a century later, in Roe, it substituted its own will for that of state legislatures in decreeing that the substance of the law must include the protection of abortion in all 50 states. Yesterday, in United States v. Windsor, it substituted its own will for that of Congress in decreeing that the substance of the law must protect gay marriage when such a marriage has been sanctioned by a state. In all three cases, the Court used the same constitutional language (whether as found in the Fifth Amendment or, nearly identically, in the Fourteenth Amendment) and the same underhanded means to achieve its preferred policy ends.
As a result, the Court now expects the American citizenry to accept the rather preposterous claim that a constitutional amendment that was written during the first term of the Washington administration, and ratified in 1791, bans Congress from defining marriage — even for purposes of federal law — as a union between a man and a woman. In other words, that which the Founders assumed would never have to be defined, Congress is now powerless to define. And this is not merely because five justices wish this to be true — or so we are told by those five justices— but rather because the Founders’ own words, expressed in the Constitution, somehow require this result.
In Federalist 78, Alexander Hamilton wrote that when judges, “on the pretense of a repugnancy” (between a law and the Constitution), “exercise WILL instead of JUDGMENT, the consequence [is] the substitution of their pleasure to that of the legislative body” (caps in original). Suggesting the gravity of such a transgression, Hamilton continues: “The observation, if it proved anything, would prove that there ought to be no judges distinct from that body.” In other words, if judges are going to act like legislators, who needs judges?
Of course, a constitutional republic does — but it needs principled judges who view themselves as duty-bound to apply the Constitution as written, rather than lawless judges who view themselves as being free to impose their own will under the guise of construing that document.
In truth, at least for purposes of federal law, the Constitution does not prevent Congress from defining marriage as being a union between a man and a woman any more than it compels Congress to define marriage in that manner. The Constitution does not resolve this issue — just as it doesn’t resolve abortion and didn’t resolve slavery before the passage of the Thirteenth Amendment. Following in the ignoble footsteps of their counterparts on Dred Scott and Roe, however, a majority of the current justices are now pretending otherwise — at the expense of the separation of powers, the rule of law, and the right of a free citizenry not to be subject to arbitrary power.