Tuesday, September 29, 2015

Constitutional rights

i) I'd like to expand on why Obergefell is an illegitimate ruling. Five justices decreed a Constitution right of homosexual marriage. 

Now, there's nothing wrong, in principle, with the notion of a new Constitutional right. There is, however, a proper mechanism for creating new Constitutional rights, and that's the process of Constitutional amendment. Obergefell short-circuits that process. But that, in itself, delegitimates the ruling. Obergefell is an extralegal abuse of power. The only legal way to create a new Constitutional right is by amending the Constitution.

ii) In addition, the Federal judiciary lacks the jurisdiction to invent civil rights. According to the 9th and 10th amendments, that's an Unconstitutional of authority that violates Federalism: 

The Ninth Amendment clarifies that the people retain all rights beyond those expressly listed in the Bill of Rights. The Tenth Amendment clarifies that the branches of the federal government may exercise only the powers constitutionally granted to it. Thus, any powers not constitutionally granted to the federal government (or prohibited from state exercise) are reserved to the states or the people. The Framers had two main purposes for the Tenth Amendment: It was a necessary rule of construction to explain how the Bill of Rights is to be understood, and it reaffirmed the nature of the federal system.
The Tenth Amendment explains how the Bill of Rights should be understood. 
Bills of rights were common in state constitutions because states exercised general legislative powers. Because the Constitution granted Congress limited powers, a bill of rights would be unnecessary and possibly dangerous. A bill of rights could imply federal legislative powers that are broader than those granted in the Constitution. Therefore, the Tenth Amendment creates a rule of construction that warns against interpreting the amendments to grant additional powers beyond those granted in the Constitution. For instance, the First Amendment directs that “Congress shall make no law...abridging freedom of speech, or of the press.” Article I never granted any power to Congress over speech or the press in the first place; the Tenth Amendment clarifies that the Bill of Rights does not grant any additional powers beyond those granted in Articles of the Constitution. 
The Tenth Amendment reinforces the federal system created by the Constitution and acts as a bulwark against federal intrusion on state authority and individual liberty. The Constitution establishes a novel system of government and a unique relationship between the states and the federal government. Each government possesses direct authority over citizens. Yet, as James Madison emphasized in The Federalist No. 45, the powers of the federal government were limited and as- signed, while the powers of state governments were quite numerous and general. The concept of enumerated powers is central to the Constitution’s creation of a partly federal, partly national government. The Tenth Amendment is a concise summation of the very idea and structure of a government of limited powers. 

iii) Finally, efforts to short-circuit the legislative branches and/or the amendment process subvert representative gov't. As the late Chief Justice Rehnquist observes: 

Judges then are no longer the keepers of the covenant; instead they are a small group of fortunately situated people with a roving commission to second-guess Congress, state legislatures, and state and federal administrative officers concerning what is best for the country. Surely there is no justification for a third legislative branch in the federal government, and there is even less justification for a federal legislative branch’s reviewing on a policy basis the laws enacted by the legislatures of the fifty states.  
At least three serious difficulties flaw the brief writer’s version of the living Constitution. First, it misconceives the nature of the Constitution, which was designed to enable the popularly elected branches of government, not the judicial branch, to keep the country abreast of the times. 
Representative government is predicated upon the idea that one who feels deeply upon a question as a matter of conscience will seek out others of like view or will attempt to persuade others who do not initially share that view. When adherents to the belief become sufficiently numerous, he will have the necessary armaments required in a democratic society to press his views upon the elected representatives of the people, and to have them embodied into positive law. 
Should a person fail to persuade the legislature, or should he feel that a legislative victory would be insufficient because of its potential for future reversal, he may seek to run the more difficult gauntlet of amending the Constitution to embody the view that he espouses. Success in amending the Constitution would, of course, preclude succeeding transient majorities in the legislature from tampering with the principle formerly added to the Constitution. 
I know of no other method compatible with political theory basic to democratic society by which one’s own conscientious belief may be translated into positive law and thereby obtain the only general moral imprimatur permissible in a pluralistic, democratic society. It is always time consuming, frequently difficult, and not infrequently impossible to run successfully the legislative gauntlet and have enacted some facet of one’s own deeply felt value judgments. It is even more difficult for either a single individual or indeed for a large group of individuals to succeed in having such a value judgment embodied in the Constitution. All of these burdens and difficulties are entirely consistent with the notion of a democratic society. It should not be easy for any one individual or group of individuals to impose by law their value judgments upon fellow citizens who may disagree with those judgments. Indeed, it should not be easier just because the individual in question is a judge. We all have a propensity to want to do it, but there are very good reasons for making it difficult to do. The great English political philosopher John Stuart Mill observed:
The disposition of mankind, whether as rulers or as fellow-citizens, to impose their own opinions and inclinations as a rule of conduct on others, is so energetically supported by some of the best and by some of the worst feeling incident to human nature, that it is hardly ever kept under restraint by anything but want of power. . . .34 
The brief writer’s version of the living Constitution, in the last analysis, is a formula for an end run around popular government. To the extent that it makes possible an individual’s persuading one or more appointed federal judges to impose on other individuals a rule of conduct that the popularly elected branches of government would not have enacted and the voters have not and would not have embodied in the Constitution, the brief writer’s version of the living Constitution is genuinely corrosive of the fundamental values of our democratic society. 


  1. So what's the proper course of action given the Obergefell decision? Where do we collectively go from here?

    1. There's not much that isolated individuals can do. However, we can encourage conservative gov't officials to challenge judicial supremacy. In fact, here's a potential movement: