By Alan Caruba
I am not a
lawyer, but I have read the Constitution and I cannot find any indication that
the Founding Fathers intended the guarantee of “equal protection of the laws”
in the 14th Amendment to include same-sex marriage.
The idea
would have been regarded as an abomination to the men who created the
Constitution. To many who regard the institution of marriage a sacred bond
between a man and a woman, the decisions of lower courts that have facilitated
same-sex marriage are deeply offensive
When the
Supreme Court decided not to decide upon appeals from seven states regarding
lower court rulings that their bans on same-sex marriage were unconstitutional,
they essentially endorsed same-sex marriage. It is now legal in 25 states,
paving the way for a total of 30 states that recognize it, but only by popular
vote in three of them; the rest had it imposed through the courts.
The same
can be said of the Supreme Court’s decision in 1973 that permitted abortion as
a legal right. Here again, the 14th Amendment was cited. As one
source noted, “The Court summarily announced that the ‘Fourteen Amendment’s
concept of personal liberty and restrictions upon state action” includes “a
right to personal privacy, or a guarantee of certain areas or zones of privacy
and that “this right of privacy…is broad enough to encompass a woman’s decision
whether or not to terminate her pregnancy.”
As this is
being written, there have been more than 57,245,810 fetuses aborted since 1973
and, this year, there have been 840,045. Thus, decisions that the Supreme Court
makes can literally result in life or death.
One of the
most dramatic decisions of an earlier Supreme Court was the 1857 Dred Scott
case that ruled that African Americans, whether slave or free, could not be
American citizens and thus had no standing to sue in federal court, nor that
the federal government had any power to regulate slavery in the territories
acquired after the creation of the nation. The Civil War would follow in 1861
and last until 1865, resulting in more than 600,000 casualties, but finally
ending slavery in America. Even some of the Founding Fathers had predicted that
conflict.
When the
Supreme Court has wandered into the area of social policy and culture, it has
made decisions that were contrary to the majority of the population. The
decision about slavery was about property—the slave--but many regarded slavery as an institution that must be ended.
The
Supreme Court, of course, is not one long list of bad decisions. It has done
much good and one man is credited with setting it on its course as a co-equal
brand of the federal government. That man was John Marshall. I doubt that his
name and deeds are even taught in the schools of America.
As a
brilliant and very entertaining biography by Harlow Giles Unger, “John
Marshall: The Chief Justice Who Save the Nation”, reveals, “Marshall’s
pronouncements would ensure the integrity and eminence of the Constitution and
the federal government and catapult him into the pantheon of American Founding
Fathers as the father of the American federal justice system.”
“He would
become the longest serving Chief Justice in U.S. history, signing 1,180
decisions and writing 549 of them, or nearly half, himself.” America was fortunate to have a legal
scholar, utterly devoted to the Constitution, in its early, formative years.
“Case by case he defined, asserted, and when necessary, invented the authority
he and the Court needed to render justice, stabilize the federal government,
and preserve the Union and the Constitution.”
Chief among
Marshall’s achievements was to assert that the Supreme Court had the right and
duty to declare federal and state laws to be either constitutional or
unconstitutional. With that it became the third equal but separate branch of
government.
Marshall
had fought in the American Revolution and had had a distinguished career as a
lawyer. As Unger says, “Clouds of doom shrouded the nation in 1800. George
Washington was dead. For the first time in their twenty-five year struggle to
govern themselves, Americans faced a future without the father of their country
to lead them. And they lost their way.”
“Absent
their commander-in-chief, the men who helped him lead the nation to
independence went mad. Chaos engulfed the land as surviving Founding
Fathers—Adams, Burr, Hamilton, Jefferson, Monroe, and others—turned on each
other as they clawed at Washington’s fallen mantle.” Jefferson as the third
President wanted to rule as a virtual tyrant, but Adams’ appointment of
Marshall put a brake on those ambitions.
The United
States is passing though a period of governance in which the Congress is so
locked in partisanship and so divided that it is barely able to function in the
national interest. The current President is losing the popularity he enjoyed
when first elected and, now into his second term, he is losing the support and
confidence of a majority of Americans. Barack Obama has repeatedly expressed
his displeasure with a Constitution that places limits on his power as
President.
As Unger
notes “Nothing in the Constitution gives a President power to issue
proclamations or executive orders with the force of law. Only Congress can
legislate, yet presidents have issued more than 13,500 proclamations and
executive orders since the founding of the Republic, while the Congress has
enacted only about 20,000 laws.”
The
Constitution remains supreme above the office of President and, in great
measure, we can thank the work of Chief Justice John Marshall.
© Alan
Caruba, 2014
No comments:
Post a Comment