Flummoxed in Philadelphia

I was in Philadelphia earlier this week and took this picture of Independence Hall.  I stopped to think for a moment what our Founding Fathers would think if they were with us this week.  I doubt they could believe what has happened to the document that they drafted there in the hot summer months of 1787.  I think they would be flummoxed in Philadelphia if they were alive.

Let's look at the facts in the U.S. Supreme Court's Proposition 8 case that was decided this week as one example.

The people of California voted to amend the California Constitution to define marriage as between one man and one woman.  This was in reaction to the State Supreme Court determining that California's state constitution guaranteed same-sex couples the right to marry. By the way, this "guaranteed right to marry" had not been previously found in the California Constitution by anyone for the previous 150 years.

In effect, the California Supreme Court legislated from the bench and the People took matters into their own hands through the referendum process and made the California Constitution clear. 

A single federal district court judge (reportedly gay) ruled that California's definition of marriage violated the U.S. Constitution.

California's governor and attorney general did not defend the case as it went up to the Federal Appeals Court which affirmed the lower court decision. 

In effect, the State of California's highest elected officers violated their oath of office which is  specifically established in the state's constitution as follows.

SEC. 3. Members of the Legislature, and all public officers and employees, executive, legislative, and judicial, except such inferior officers and employees as may be by law exempted, shall, before they enter upon the duties of their respective offices, take and subscribe the following oath or affirmation:

"I, ___________________________, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States and the Constitution of the State of California against all enemies, foreign and domestic; that I will bear true faith and allegiance to the Constitution of the United States and the Constitution of the State of California; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties upon which I am about to enter.

This required citizen supporters of Prop 8 to defend the Constitutional provision themselves from plainftiffs who wanted to subvert the Constitutional provision. This ultimately led them to the United States Supreme Court.

The decision in this Supreme Court case should send chills down all of our spines, not to mention those of our Founding Fathers.  The Court did not rule on the question of the constitutionality of gay marriage in California or anywhere else.  If they did, it is hard to see how they could not have ruled with the People of California.  After all, 35 other states have similar provisions on the books that defines marriage in identical terms.

Their ruling was simply that the citizens supporters did not have any "standing" or direct interest in the issue before the Court.  Of course, the State had "standing" (and an obligation) but it chose not to stand, support and defend its own Constitution.

What type of precedent does this establish? 

Are we to have a system by which our elected officials can now pick and choose which parts of a state constitution (or the federal constitution) they will and will not enforce? Which laws they will and will not enforce?  And the People are told they have no standing to support and defend their own Constitution?

That appears where the Supreme Court has left us in its decision on Prop 8. 

What is so troubling is that the Supreme Court was established by our Founders as the final safety mechanism for the People.  It is the ultimate check to keep things in balance and removed from the politics and passion of the moment.  It has proven to be an utter failure in this case.

There was a simple way to decide this case.  That was to uphold the right of the people of California to define marriage the way they wanted it and which had been the accepted rule for over 150 years in the state.  The Supreme Court could also have stated that if the people of California wanted to amend the  California Constitution (again) there was an established method to do that as well. 

They should have also done the same with the Defense of Marriage Act case.  How could DOMA be constitutional in 1996 when it was passed (by the way, the Senate passed it 85-14 and the House passed it 342-67 with President Clinton signing it into law) and not now? 

For my complete views on the issue of gay marriage see my post, Marriage and Money.

What is so wrong with following the Constitution? I wrote about all of this in 2011 in "Making Amends With The Constitution". There is a process in place in our Constitution if we want to change the rules. It is not easy but it was not supposed to be easy if we were to carefully protect the rights of the majority and also assure that minority rights are also respected. It is instructive to look at what I wrote at that time.

Article I, Section 8 of the Constitution provides that Congress has the power to lay and collect taxes.  Nevertheless, the income tax law of 1892 was ruled unconstitutional because it was considered outside the power of Congress.  The 16th Amendment was ratified in 1913 to allow it.

There was nothing in the Constitution signed by the framers that precluded women from voting. All references in the document were to people, not men.  However, the culture and custom was generally for only males to vote.  Nevertheless, it took the 19th Amendment in 1920 before it became the law of the land.  Interestingly, 15 states (beginning with Wyoming in 1870) granted women the right to vote before adoption of the 19th Amendment.  Since voter eligibility was an issue left to the states (in that it was not specifically enumerated in the Constitution by the Framers) women in these states voted in both state and federal elections before 1920.


The point here is pretty clear to me. There was a time when the Constitution meant something. It was respected for what it was. So were the limitations that were carefully crafted into the document by the Framers. Even when there was pretty compelling language in the Constitution to bend it to the "current times" it was ruled out of bounds. Has something been lost?

Was it designed to change with time? Of course. That is what the amendment process is for (Article V). The Framers in their wisdom also considered this carefully. They did not want it amended for some passing fancy. Nor did they want a small majority to change the key foundations of the governing document to the detriment of a significant minority. Therefore, 2/3 of both the House and Senate can come together and propose any amendment. They do not even need the President to concur.

Alternatively, 2/3 of the states can come together and call a convention to propose their own amendments and bypass Congress completely. If the amendment is ratified by 3/4 of the states it is adopted as part of the Constitution.

If the American people want a federal government with expansive power they can have it. They can allow gay marriage. Or ban it in all 50 states. They can require everyone to buy health insurance or anything else. They can ban assault weapons or ban abortions from coast to coast.  Or the manufacture or sale of alcoholic (18th Amendment) or the repeal of a previous Amendment (21st Amendment).

There is a way to do it. 

It just does not seem that these types of powers exist with the President or Congress with any reasonable reading of the Constitution. At least, this has been the interpretation for most of our history. Nor does it seem to be within the power of a handful of judges to suddenly discover fundamental rights that have somehow been hidden in the Constitution for over 200 years and start applying them to 308 million citizens by fiat.

That is why there is an amendment process to the Constitution. It is hard and it was meant to be hard.  Passing fancies and fanciful passions should not determine public policy.  It most certainly should not be decided by nine (actually five) people in robes in Washington, DC or a judge (gay or otherwise) in San Francisco.

Abraham Lincoln concluded his Gettysburg Address as follows,

That this nation, under God, shall have a new birth of freedom--and that government of the people, by the people, for the people, shall not perish from the earth.

Abe, we can only pray that you are right.