Screw the Constitution, I am the Decider

“The Constitution means whatever we want it to.”

This sums up, in 7 words, the “living Constitution” method of Constitution “interpretation” that many judges so dearly believe in. A few weeks ago, judges Stephen Reinhardt, Michael Hawkins, and N. Randy Smith took this to heart as they declared Proposition 8, the anti-gay-marriage law in California, to be a violation of the 14th Amendment’s Equal Protection Clause.

Let’s set a few things straight:

1) Law is not politics. This seems simple enough, but to both the casual observer and most judges, in fact, the distinction is somehow subtle. When considering whether or not a law conflicts with another law or Constitutional Amendment, the only thing to be considered is what the law says, not what it ought to say.

2) The job of a judge, in terms of judicial review, is to interpret the law, not rewrite it. It is a perversion of the rule of  law to declare/consider a law “unconstitutional” simply because you dislike its political implications.

3) The Constitution means what it says, just like any other law. A law means nothing if it is not interpreted based on the original intent of the Congress that ratified it. The opinion held among judges that it should be interpreted “to meet the needs of the current society” is not only a violation of the separation of powers (“the needs of current society” are subjective, this is basically rewriting the Constitution), but also undemocratic (since when are un-elected judges better determinants of our needs than our elected representatives?)

4) Politically, I disagree with Prop 8. I don’t think it should have passed in the California state legislature.

With that in mind…

Proposition 8 is Constitutional. The Congress that ratified the 14th Amendment would have never meant it to mean anything about gay marriage. Ever. Frankly, homosexual relationships back then were illegal. We may look at the 14th and say “Well, it says ‘equal protection for all’, literally”.

Let’s get one more thing straight: The meaning of any sentence, any word, is not vested in the meaning of the word. The literal connotations of words, sentences, or Constitutional Amendments change over time. Thomas Jefferson saw no conflict in saying that “All men are created equal” while owning slaves. Similarly, the words “equal protection under the law” didn’t have the same connotations back then as they do today. The 14th gave all citizens the rights vested in the Constitution, but not equal protection under every law. If they had actually meant “equal protection”, it would have given women the right to vote, but judging by the 52-year gap between the 14th and women’s suffrage, I don’t think they meant what we think when we say “equal protection”.

If you’re looking for a law that codifies equal protection, that would be the Civil Rights Act of 1964. However, Prop 8 doesn’t conflict with that statute either. All it does is prevent any individual from marrying someone of the same sex, gay or straight. There’s no “unequal protection” involved.

However, why am I talking about this?

It’s not because I want to stop gay marriage or anything, it’s because I want to preserve the Constitution. If judges can rule that the Constitution means whatever they want it to, then soon enough, nothing in the Constitution will mean anything. That includes freedom of speech, the right to a fair trial, protection from torture, the whole kit-and-caboodle.

Judges do not dictate natural law. If you want to wage war on Prop. 8, do it in the ballots, that is the way it is properly done in a free and democratic society.

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2 thoughts on “Screw the Constitution, I am the Decider

  1. I like the line “law is not politics”, Bastiat couldn’t have said it better himself. As a matter of fact I see a lot of Bastiat in this post. The reference to the “perversion” of law, the reference to “natural law”…..I’m digging it. Keep it coming, I thoroughly enjoy reading something that is well said and thought out.

    • Thanks a lot; I can’t stand it when people fail to see the difference. When I tell people that I think that Prop 8 is unconstitutional or that Roe v. Wade was a bad decision, people call me anti-gay marriage or pro-life (neither of which is true).

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