Most definitely if you see what the Courts have done in recent years. In particular, on the issue of gay marriage where the U.S. Supreme Court ruled in 2013 that restricting the U.S. federal interpretation of "marriage" and "spouse" to apply only to heterosexual unions, by Section 3 of the Defense of Marriage Act (DOMA), was unconstitutional under the Due Process Clause of the Fifth Amendment.
Bear in mind that the DOMA had passed Congress 342-67 in the House and 82-14 in the Senate in addition to be signed into law by Democrat President Bill Clinton in September, 1996. This was not even a close call considering that the legislation merely codified established culture, custom and what was considered a constitutional norm from the beginning of the Republic for some 200 years.
It is mind boggling to think that our Judiciary would believe that it is within their power to effectively legislate from the bench on such an important issue thereby ignoring both the legislative and constitutional process and do it all within a 17 year period. This is a mere speck of time in historical terms and is with almost no precedent in constitutional terms.
This is particularly true when it is observed what various federal courts have done with regard to the issue at the state level.
In 26 states, gay marriage is only legal because of court decision. In many of these states the Courts overturned a valid constitutional provision of the state voted on by the people of the state.
Alabama* (Feb. 9, 2015), Alaska (Oct. 17, 2014), Arizona (Oct. 17, 2014), California (June 28, 2013), Colorado (Oct. 7, 2014), Connecticut (Nov. 12, 2008), Florida (Jan. 6, 2015), Idaho (Oct. 13, 2014), Indiana (Oct. 6, 2014), Iowa (Apr. 24, 2009), Kansas (Nov. 12, 2014), Massachusetts (May 17, 2004), Montana (Nov. 19, 2014), Nevada (Oct. 9, 2014), New Jersey (Oct. 21, 2013), New Mexico (Dec. 19, 2013), North Carolina (Oct. 10, 2014), Oklahoma (Oct. 6, 2014), Oregon (May 19, 2014), Pennsylvania (May 20, 2014), South Carolina (Nov. 20, 2014), Utah (Oct. 6, 2014), Virginia (Oct. 6, 2014), West Virginia (Oct. 9, 2014), Wisconsin (Oct. 6, 2014), Wyoming (Oct. 21, 2014)
Only 8 states have had gay marriage legalized by their state legislature.
Delaware (July 1, 2013), Hawaii (Dec. 2, 2013), Illinois (June 1, 2014), Minnesota (Aug. 1, 2013), New Hampshire (Jan. 1, 2010), New York (July 24, 2011), Rhode Island (Aug. 1, 2013), Vermont (Sep. 1, 2009)
Only 2 states (and the District of Columbia) have approved gay marriage by popular vote of the people.
Maine (Dec. 29, 2012), Maryland (Jan. 1, 2013), Washington (Dec. 9, 2012)
Source: ProCon.org
Therefore, in only 10 out of 50 state has same sex marriage been approved by anything close to constitutional standards.
Compare that to other significant constitutional issues in our history.
For example,
Abolition of Slavery
President Lincoln had effectively abolished slavery through his Emancipation Proclamation in 1863 but he still believed in the necessity of following Constitutional standards and proposing the 13th Amendment which reads "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."
Lincoln's effort in this regard is the subject of the 2012 movie "Lincoln". Why did he see the need to go though all of that effort when it could have been done by the Courts or by letting his Emancipation Proclamation do the job? He did it because he wanted the legitimacy of the process.
Income Tax
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 the establishment of an income tax.
Women's Right to Vote
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.
Equal Rights Amendment
Similarly, a substantial effort was made in the 1970's to pass an Equal Rights Amendment to the U.S. Constitution to state that "Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex." Why go through the effort if a court could just make a ruling? The amendment ultimately failed as only 35 of the 38 states needed to ratify the amendment signed on.
Was the U.S.Constitution 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. 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 over 300 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.
Next week the U.S. Supreme Court will hear arguments on whether state bans to same sex marriage violate the U.S. Constitution.
It should not even be a close case if the Justices look to the plain reading of the Constitution, the clear intent of the Founders and the historical perspective I have provided above.
For example, this is what James Madison wrote in Federalist Paper No. 45 regarding the power of the Federal government.
With this background, how could the federal government believe it could dictate to a state's citizens its view on gay marriage? How is gay marriage any different than the right of women to vote?
It should also be remembered that Alexander Hamilton was a vocal critic of enacting the Bill of Rights because he believed that articulating specific restrictions on federal power was opening the door for mischief. He felt it was clear that the default position of the federal government was an absence of power, and any specific power existed only by grant from the Constitution. In effect, the Bill of Rights would work against the people, not for them.
Thus, he wrote in Federalist Paper No. 84 as follows,
I remain uncertain and unconvinced about the benefits to society of same sex marriage. That case has yet to be made in my opinion but I am open to facts supporting its value as might be revealed over time. However, I am certain about the wisdom of our Forefathers.
For example,
Abolition of Slavery
President Lincoln had effectively abolished slavery through his Emancipation Proclamation in 1863 but he still believed in the necessity of following Constitutional standards and proposing the 13th Amendment which reads "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."
Lincoln's effort in this regard is the subject of the 2012 movie "Lincoln". Why did he see the need to go though all of that effort when it could have been done by the Courts or by letting his Emancipation Proclamation do the job? He did it because he wanted the legitimacy of the process.
Income Tax
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 the establishment of an income tax.
Women's Right to Vote
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.
Equal Rights Amendment
Similarly, a substantial effort was made in the 1970's to pass an Equal Rights Amendment to the U.S. Constitution to state that "Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex." Why go through the effort if a court could just make a ruling? The amendment ultimately failed as only 35 of the 38 states needed to ratify the amendment signed on.
Was the U.S.Constitution 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. 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 over 300 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.
Next week the U.S. Supreme Court will hear arguments on whether state bans to same sex marriage violate the U.S. Constitution.
It should not even be a close case if the Justices look to the plain reading of the Constitution, the clear intent of the Founders and the historical perspective I have provided above.
For example, this is what James Madison wrote in Federalist Paper No. 45 regarding the power of the Federal government.
The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.
With this background, how could the federal government believe it could dictate to a state's citizens its view on gay marriage? How is gay marriage any different than the right of women to vote?
It should also be remembered that Alexander Hamilton was a vocal critic of enacting the Bill of Rights because he believed that articulating specific restrictions on federal power was opening the door for mischief. He felt it was clear that the default position of the federal government was an absence of power, and any specific power existed only by grant from the Constitution. In effect, the Bill of Rights would work against the people, not for them.
Thus, he wrote in Federalist Paper No. 84 as follows,
[A Bill of Rights] would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?
I remain uncertain and unconvinced about the benefits to society of same sex marriage. That case has yet to be made in my opinion but I am open to facts supporting its value as might be revealed over time. However, I am certain about the wisdom of our Forefathers.
What I know for sure is the rush to sanctify same sex marriage was exactly the type of thing that the Founders did not want to do in haste. They certainly did not want the federal government overturning 220 years of history and precedent counter to the views and values of the various states.
The right answer is for the Supreme Court to let the individual states determine the legality of gay marriage within their borders and determine its effects, pro or con.
When and if it has true national support, begin the constitutional amendment process.
This is not an issue that should be decided by 9 (or 5) Justices.
This is the Constitution we are talking about.
Does it mean anything anymore?
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