As I mentioned last night, yesterday another federal court decision threw out yet another same sex marriage ban. I would like to take a moment to explain why I think it’s important for such moves to be made legislatively and not by judicial fiat. I will do so with the aid of a long-time commenter.
The key thing, for me, is the rule of law.
The Constitution simply doesn’t say anything about same sex marriage. If one adheres to the concept that words must be interpreted according to the original understanding of those words, as I believe one must, then it is plain that the people who passed the 14th Amendment in 1868 were not thinking of same sex marriage when they used the words “equal protection.” Now were they thinking of abortion (looking at you, Ruth Bader Ginsburg) or anything else having to do with gender. As Raoul Berger has shown in his extensive scholarship, “equal protection” provided all races with access to the courts, the right to own property, and the right to engage in contracts. It didn’t even address the right of blacks to vote, which is why a Fifteenth Amendment was thought necessary — and it certainly didn’t deal with the right of women to vote, which is why a Nineteenth Amendment was thought necessary.
Why does this matter? Let me provide an edited quotation from longtime reader Simon Jester on the matter. He is responding to another commenter named “happyfeet” who takes the position that the words “equal protection” mean gays have a constitutional right to marry. As I have said many times, I believe gays should be allowed to marry, but I don’t think it’s a federal constitutional right for the reasons I just stated, and I said so to happyfeet. Simon Jester said:
I had to sadly laugh a little as I watched Patterico and Mr. Feet duke it out upthread. Their differences of opinion really do showcase the battle at the core of our nation, in a microcosm. The true Culture War we aren’t talking about, that is taking place right now, everywhere.
Patterico (and yours truly, for what that is worth, though I am not a lawyer or “Constitutional Scholar,” the latter of which seeming to be quite flexible in definition) think that the Constitution should be strictly interpreted, and not at the whim of culture fashion. If changes are necessary, then it is time for everyone to agree, figuratively, via amendments to that Constitution. And even that approach makes mistakes from time to time; no system is perfect. . . .
What we have now are cultural whims being imposed on people by judges. Mr. Feet loves it now, because those decisions agree with his world views and current political fashion-sense. The ghost of Robespierre would urgently point out that the rules approved of when they benefit one’s world view can also be used to toss that same world view away. There is a strange narcissism among progressives and the Left that not following the law is okay so long as the results are pleasing (there are a number of cultural quotations about that, involving omelettes and eggs, and even one about Stalin knowing when to halt his advances during WWII). But what is happening now is all according to cultural fashion. And those fashions can change, and rather quickly. Precedents, once set, are dangerous.
The Democrats love the “nuclear option” now. They won’t later. As I have tiresomely repeated, the best rule or law is one you do not mind in the hands of your bitterest enemies. Does anyone think that the MSM and the Left (though I repeat myself) would be silent about the NSA and IRS’s excesses . . . with a Republican in the Oval Office? Many folks seem to be okay with hypocrisy, and that works fine on network news, but not so much in the legal structure of our nation.
Look at Patterico’s very relevant comments about “emanations and penumbras” of the Constitution. Douglas used that phrase in Griswold v. Connecticut to justify a result he wished to see (and if you haven’t read about Griswold v. Connecticut, it is worth your time). Now me, I love privacy. But I am a strict constructionist when it comes to the Constitution. And claiming that the Constitution could have squishy definitions to support my wishes, even if I like those wishes and want to seem them come to pass, is . . . dangerous.
As several people have pointed out, if SSM is an equal protection issue, why isn’t polygamy? And the discussion of it is interesting. People who are very, very defensive of SSM, and call opponents bigots or worse, usually seem just fine making sneering comments about polygamy. After all, picking on different Christian faiths is an acceptable bigotry to many. And why not? They seldom saw off your head in response. . . .
I think that judicial fiat is very, very dangerous. In some ways, it is most dangerous when that fiat agrees with what you would like to see. I hope that Mr. Feet would be equally happy with judges deciding to do things he does not like, and foisting it upon the public.
Fashions change. Laws can and perhaps should be flexible, but they should not become spineless, to reflect what people believe or think at a given time.
(I differ with Simon only to quibble with terminology; what he calls “strict construction” I call “original understanding” which need not be “strict” but can be flexible — but whose touchstone is always what the words reasonably meant when written.)
An appeal to original understanding is the only method of interpretation that gives force to the text. Any other method gives the power to the judge who wants to make the words mean whatever he wants them to mean.
Judges, of course, have always been the ones entrusted with making the call about what Constitutional provisions mean. The difference is whether they should consider themselves constrained in that effort by a rule that says they must try to discern what the words meant when written — or whether they are entitled to make those words means whatever they think they ought to mean. Simon’s comment eloquently makes the case why the latter approach is a bad one.
Anyone who defends twisting the Constitution to obtain a result they like today has no basis to complain about Obama’s power grabs. The same idea applies: the end seems good, maybe not to you, but to many . . . so who cares if some old document purports to restrain him?