Wednesday, January 28, 2015


Thomas McIntyre Cooley, the renowned nineteenth century American jurist, insisted that written constitutions should be interpreted as intended by the people who wrote them and who ratified them.

He believed that any judge who tried to change the meaning of the constitution to fit the changing of popular opinion would be guilty of misfeasance in office.

In fact, he said that the very reason to have a written constitution is to protect the fundamental law of the land from being ignored or changed by the people in government.

The cases involving gay marriage now wending their way through the hallowed halls of the United States Supreme Court are particularly important because they present in stark clarity the issue of whether our federal Constitution means what it was written to mean or whether it means what nine unelected men and women think it would, should or might mean if it were written today.

Certainly no lawyer briefing or arguing this case would claim that the men who wrote and ratified the United States Constitution in the last decades of the eighteenth century or those who drafted and adopted the Fourteenth Amendment in the middle of the nineteenth century intended that by assuring equal protection of the laws they meant to authorize or condone sexual activity between persons of the same sex or to elevate it to the legal status of matrimony.

And certainly none of the nine Justices will attempt to justify voting to legalize gay marriage as being required, suggested or even permitted by the original intent of the founders or the Reconstruction Congress.

No indeed. That is not what will be said during the oral arguments, and it is not what we will read in the judicial opinions. What the lawyers will debate and what the Justices will discuss and decide is not what the words “equal protection of the law” meant in 1789 or 1868. No, they will be debating what those words mean to people in 2015.

Now here is where legal theory comes into conflict with democracy. Deciding what words mean to the people of today is simply another way of trying to measure public opinion.

Do the general run of the American people think that giving everyone the equal protection of the laws requires legalizing gay marriage?

The Supreme Court of the United States, on more than one occasion has decided a case based on what a majority of the Justices believed to be “an emerging public consensus.”

Letting judges decide cases based on public opinion is wrong. It is bad law and it is bad politics. Even worse is letting them decide cases based on “emerging” public opinion.  When they say that something represents the “emerging public consensus” they are admitting that the majority of the people still think otherwise, but pretty soon they will agree with the Court.

Appellate judges are like second term Presidents. They are motivated by the desire to be admired, respected, loved and famous. They think about their ‘legacy.’ How will historians treat them?  And, of course, they know that historians read old newspapers, so judges like favorable editorials.

Judges like to make ‘historic’ decisions; decisions that make a difference. Landmark cases. And they know that the American people have great respect for their Supreme Court. The building, the aura, the security, the lines of visitors who trek daily through the halls and whisper reverently in the empty courtroom; the Justices live and work among these reminders of their power and importance.

Justices know that their decisions influence the way people think. When they talk about ‘emerging’ public consensus, they know full well that their approval of gay marriage will move the ball closer to the goal they approve and predict. 

No honest, patriotic American would deny the people of Michigan the right, either directly or through the act of their legislature, to legalize gay marriage.

But no honest, patriotic American should tolerate that decision being made by the Justices of the Supreme Court.

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