Sunday, June 28, 2015

Our Lost Constitution

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?

Most definitely based on the 5-4 Supreme Court decision on Friday where it was miraculously concluded that the 14th Amendment to the United States Constitution provides "that the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty."

It is all a little hard to understand in that the 14th Amendment was adopted in 1868.  How is it that this fundamental right in the Constitution was not discovered for 147 years?

Justice Scalia asks the same question in his dissenting opinion and he also provides a most troubling answer.

“The five Justices who compose today’s majority are entirely comfortable concluding that every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’ permitting of same-sex marriages in 2003. 
They have discovered in the Fourteenth Amendment a ‘fundamental right’ overlooked by every person alive at the time of ratification, and almost everyone else in the time since. They see what lesser legal minds—minds like Thomas Cooley, John Marshall Harlan, Oliver Wendell Holmes, Jr., Learned Hand, Louis Brandeis, William Howard Taft, Benjamin Cardozo, Hugo Black, Felix Frankfurter, Robert Jackson, and Henry Friendly—could not.
They are certain that the People ratified the Fourteenth Amendment to bestow on them the power to remove questions from the democratic process when that is called for by their ‘reasoned judgment.’
These Justices know that limiting marriage to one man and one woman is contrary to reason; they know that an institution as old as government itself, and accepted by every nation in history until 15 years ago, cannot possibly be supported by anything other than ignorance or bigotry. And they are willing to say that any citizen who does not agree with that, who adheres to what was, until 15 years ago, the unanimous judgment of all generations and all societies, stands against the Constitution.”

What is most amazing to me is that five unelected Supreme Court Justices could effectively overrule state constitutional provisions and laws against same sex marriage. And almost all of the constitutional provisions were ratified by the voters of each state within the last 15 years. By and large these were not even close votes either.

What is even more remarkable about this is that these Constitutional votes were taken by the people exactly because they were concerned about this exact result---that judges would somehow find a "right" in their Constitution that did not exist there before.

Below is a chart of the states that voted on the question of same sex marriage by a vote of the people with the vote outcome.

Notice that in only two cases did a ban on gay marriage fail to gain a majority of voters. In Arizona in 2006 (which also attempted to ban civil unions) and in Minnesota in 2012.  Arizona voters went on to ban same sex marriages in 2008 while allowing civil unions for same sex couples.

StateDateYes Yes voteNo No voteVote outcome
Alabama200681% (734,746)19% (170,399)Yes Yes
Alaska199868% (152,965)32% (71,631)Yes Yes
Arizona200648% (574,332)52% (607,769)No No
Arizona200856% (1,258,355)44% (980,753)Yes Yes
Arkansas200475% (753,770)25% (251,914)Yes Yes
California200852% (7,001,084)48% (6,401,482)Yes Yes
Colorado200656% (865,126)44% (674,030)Yes Yes
Florida200862% (4,890,883)38% (3,008,026)Yes Yes
Georgia200476% (2,454,912)24% (768,703)Yes Yes
Hawaii199871% (285,384)29% (117,827)Yes Yes
Idaho200663% (282,301)37% (163,408)Yes Yes
Kansas200570% (414,106)30% (178,018)Yes Yes
Kentucky200475% (1,222,125)25% (417,097)Yes Yes
Louisiana200478% (618,928)22% (177,103)Yes Yes
Michigan200459% (2,698,077)41% (1,904,319)Yes Yes
Minnesota201247% (1,399,938)53% (1,550,844)No No
Mississippi200486% (957,104)14% (155,648)Yes Yes
Missouri200471% (1,055,771)29% (439,529)Yes Yes
Montana200467% (295,070)33% (148,263)Yes Yes
Nebraska200070% (450,073)30% (189,555)Yes Yes
Nevada200267% (337,183)33% (164,555)Yes Yes
North Carolina201261% (1,317,976)39% (840,802)Yes Yes
North Dakota200473% (223,572)27% (81,716)Yes Yes
Ohio200462% (3,329,335)38% (2,065,462)Yes Yes
Oklahoma200476% (1,075,216)24% (347,303)Yes Yes
Oregon200457% (1,028,546)43% (787,556)Yes Yes
South Carolina200678% (825,766)22% (232,978)Yes Yes
South Dakota200652% (172,242)48% (160,173)Yes Yes
Tennessee200681% (1,419,434)19% (327,536)Yes Yes
Texas200576% (1,718,513)24% (536,052)Yes Yes
Utah200466% (593,297)34% (307,488)Yes Yes
Virginia200657% (1,328,134)43% (998,483)Yes Yes
Wisconsin200659% (1,260,554)41% (861,554)Yes Yes
Credit: Wikipedia

What is really important to remember here is that there is a U.S. Constitution and that document has a mechanism that allows it to be amended if it is necessary. 

There is absolutely no way that the U.S. Supreme Court should be overturning a constitutional provision that a majority of the various states have adopted.

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. 

Compare the same sex ruling of the Court 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 five justices 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.

It is indeed ironic that Justice Kennedy in the majority opinion based much of his rationale on the rights and liberty of the same sex couple who wants to marry.

However, what of the rights and liberty of the voters of the various states cited above?

And most importantly, what about the rights and liberty of those who might have a different view of gay marriage based on their religion?

Who prevails in a conflict between someone who has the right and liberty to marry under the 14th Amendment and a Pastor, Rabbi or Iman who also believes that the 1st Amendment is supposed to protect their rights as well? How will the government balance those rights?

Will we see churches threatened, sued and denied tax-exempt status for not performing same sex marriages?

In my view, that is a certainty. They have already come after butchers, bakers and candlestick makers who did not want to participate in gay marriage ceremonies based on their religious beliefs. The clergy is next as are the churches, synagogues and mosques.

Look no further than Kennedy's opinion where he states only that religious believers may continue to "advocate" and "teach" their beliefs. Nothing more. There seems to be no allowance for religious believers to actually "exercise" their religion.

Who would think that when it came to rights and liberty that #14 would trump #1?

And that the politics would trump policy at the Supreme Court of the United States.

This is not the Constitution of our Founders. Are they even looking at the Constitution?  

If they can do this what can't they do?

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