Watching Jason Rapert being raked over the coals after his guest column about the gay-marriage issue highlights a deep-rooted and still-growing problem that is much larger than whether same-sex couples ought to be able to march down the marital aisle.
The problem involves misunderstanding, misinterpretation and manipulation of that hallowed political charter of ours, the U.S. Constitution.
If average Arkansans are anything like my immediate circle of friends, the last time they read the Constitution is … they can’t remember when. Maybe never since high school. Maybe only partially while in school.
And yet the contents of the Constitution are critical to preserving our Republic—a duty that rests with the people, not with the government.
A quick refresher on constitutional history: First of all, it’s an organizational document for the federal government of the United States. It sets forth the three branches (executive, legislative and judicial) and their respective responsibilities.
The framers openly and freely considered the constitutional government one of express and limited powers, yet some still feared its minions might seek to overextend its authority (shocker).
Thus Thomas Jefferson and other anti-Federalists wisely insisted on a Bill of Rights before approving ratification.
The first eight amendments explicitly spell out the federal government’s limitations (the familiar people’s rights include speech, religion, bearing arms, trial by jury, etc.).
The last two amendments of the Bill of Rights are catch-alls to further restrain federal authority: the Ninth retained all unenumerated rights to the people, and the 10th reserved undelegated powers to the people or the states.
That’s why the Constitution doesn’t include any of the laws that govern a citizen’s normal life—those are all left to the states.
The Constitution doesn’t mention murder or theft or traffic or stores closing on Sunday or marriage or divorce.
Because those things are all reserved to the states, there isn’t uniformity from state to state. Every state has its own criminal code, its own speeding-ticket fines, its own blue laws, and its own marriage statutes.
Historically, federal judges respected constitutional boundaries, even when public opinion clamored otherwise.
Suffragettes first sought to persuade the Supreme Court to manufacture a woman’s constitutional right to vote, but the justices unanimously agreed that voting restrictions were the dominion of the states.
Though it would have happened faster, a favorable court ruling could never have put the issue to rest as surely as when the 19th Amendment indelibly inked it into the Constitution.
The exact opposite happened with abortion, which also is mentioned nowhere in the Constitution.
In adjudicating the Griswold v. Connecticut case in 1965, the Supreme Court found a right to privacy emanating from the “penumbras” of other rights—the majority even invoked the Ninth Amendment, provoking Justice Potter Stewart in his dissent to accuse his colleagues of “turn[ing] somersaults with history.”
Roe v. Wade expanded that nebulous privacy right to include abortion, which until then had been reserved to the states. Roe was bad law then, it’s bad law now, and that’s why even 40 years after the ruling the constitutionality of abortion remains unsettled.
Court decision flavors of the month never produce the same accepted “law of the land” stability and finality that the constitutional amendment process does, with its required two-thirds majority in Congress and three-fourths ratification among the states.
Indeed, unlike a duly enacted amendment, Roe is still subject to being reversed should five Supreme Court justices ever side against it.
On same-sex marriage, the Constitution is silent, just as it is on opposite-sex marriage, adult-minor marriage, minor-minor marriage and human-animal marriage. The laws surrounding marriage, in Arkansas and all states, are the business of the legislatures, the federal judicial review of which is limited to constitutional compliance.
When a law defines marriage as heterosexual, it does not establish religion, abridge speech or the press, or the right to peaceably assemble or petition the government for grievances.
It creates no search or seizure. No soldiers are quartered. No witness is compelled to testify against himself.
Activist advocates—who will say anything to help their cause—claim same-sex marriage is a “liberty” protected under the 14th Amendment. But such marriages were legal nowhere, and not validated anywhere, in 1868 when that amendment was ratified.
It’s perilous to sacrifice tried-and-true constitutional principles to sate of-the-moment special-interest zealots, and we as a nation are a half-century now into that bad habit.
Though the U.S. population has only doubled since 1950, the number of federal district court judges has more than tripled. The propensity to “make a federal case” out of what is rightfully and constitutionally a state or local issue is greater than ever.
It’s not necessarily the will of the people that gets thwarted when appointed-for-life federal judges fabricate rights in the Constitution that simply aren’t there (like same-sex marriage)—what’s really being foiled is the amendment process itself.
There may not be a rebellion brewing yet, as Louisiana Gov. Bobby Jindal warned the other day, but judges who continue to ignore the literal, limiting text of the 10th Amendment while increasing federal powers from “penumbras” of others are tempting fate.