Wednesday, April 29, 2009


I have not studied a Supreme Court opinion in more that 35 years. Even that long ago, I noted a disposition among some justices to reason their way to absurd conclusions.

Varnum v Brien, decided by the Iowa Supreme Court on April 3, 2009, provides a classic example of intellectual versatility. The court concluded that the duly enacted Iowa statute defining marriage as a contract between one man and one woman violates the state constitution's equal protection clause.

To get to its foregone conclusion, the court had to begin by rewriting the statute. The Iowa law said nothing about sexual orientation. The law applies equally to persons of both sexes and of all sexual orientations.

The problem is that the court doesn't seem to know that marriage is a contract; a special kind of contract, one which is affected with the public interest.

The right to make contracts is one of the fundamental freedoms protected by our constitutions. No government permission is required to make a contract to buy a house, or form a partnership, or sell a car. Why do people have to get a license from the government to get married? Because the contract of marriage is affected with the public interest.

Marriage is, at its core, a mating contract. It is the agreement between a man and a woman which enables them to procreate human beings. That's why marriage is so special, so important, so solemn an undertaking. That's why the state regulates marriage, dictates who can marry, at what age, what degrees of consanguinity can marry, what formalities must be observed, how many people one can be married to,and how and why marriages can be dissolved.

The conception of a human being requires an egg from a female and sperm from a male. The DNA of every person is drawn from both parents. Logic, tradition and common sense dictate that both parents should have bonds of affection, responsibility, and dedication with the products of their cohabitation.

Every civilization known to man has had its protocol for marriage. From the most primative tribes to the most sophisticated empires, the natural roles of mothers and fathers are recognized and observed.

Two people of the same sex cannot procreate human beings. They cannot mate. They cannot be mates. It is physically impossible. How then, can they enter into a mating contract? Even the cerebral members of the Iowa Supreme Court cannot make that happen.

What they have done is to redefine marriage by eliminating its core identity as a mating contract. Having asserted that marriage is merely one form of a living arrangement, they then conclude that there is no substantial difference between homosexual and heterosexual unions.

The Iowa decision is another example of permissiveness in high places. If you read the court's opinion, you will see that they were terribly impressed with what nice people the plaintiffs were; school teachers, doctors, lawyers, responsible citizens. And all these nice people want is for the state of Iowa to place it's imprimatur on the form of sexual gratification they prefer.

The courts have already declared laws against sodomy to be unconstitutional. The law allows homosexuals to live together, to adopt children, to leave property to each other, to make any kind of living partnership they prefer. Those incidents are not enough for them. They want their sexual relationship to be equated with that of a man and a woman united in marriage.

Varnum v Brien is an exercise in political correctness which defies logic, common sense, history and the common good. It flies in the face of the will of the people. It is another unhappy example of the black robe syndrome; the mystic infusion of superior wisdom and judgment that is supposed to accompany the installation of judicial officers.

Sunday, April 26, 2009


Well, the Tea Parties are over, for this year at least.

Aside from reenacting the role of Howard Beale in "Network" and giving six or seven hundred thousand Americans a chance to shout "I'm mad as hell, and I'm not going to take it any longer" just what has been accomplished?

The mainstream media ignored the Tea Parties. President Obama claimed not to have been aware of them. Were all those people just shaking their fists at the sky?

Perhaps. No doubt the Republican Party will see in them the seeds of an electoral revival in two years. Conservatives see them as the leading edge of a populist revolt.

Now comes Randy Barnett, Professor of Constitutional Law at Georgetown, who favors the Wall Street Journal's Opinion page with the suggestion that the Tea Parties evidence a public demand for a "Federalism Amendment" to the US Constitution. The good professor has even drafted a proposed five section 230 word amendment which he explains in detail to the WSJ readers.

What caught my eye was his mention of Article V, the constitutional provision which authorizes an amendatory convention to be called on application of two thirds of the state legislatures.

Like so many others, pragmatic politicos and academics as well, Barnett doesn't really want to see an Article V convention. He advocates threatening one in the hope that the Congress will propose his amendment out of fear that two thirds of the states might demand one.

The Friends of an Article V Convention (FOAVC) have watched this bubble burst many times before. One issue advocates demand an Article V convention with tongue in cheek. They don't trust representative self government any more than the nay sayers who oppose a convention for any purpose. They talk and act like they want a convention only to push Congress into proposing their favored amendment.

The Tea Party Movement will begin to have some meaning when its promoters agree that the United States of America is at critical point in its history; that only an amendatory convention as envisioned by Article V can save our nation from consigning the charter of our republican form of government to the archives of history, while each new generation accepts more and more the idea that the federal government is all powerful, above restraint, and beyond the capacity of the citizenry to control.

The mob shouts for a benign dictator. Reasonable voices are hard to hear.