No Crueler Tyranny

One would think Kennedy would give Justice Ginsberg a gentle nudge so she doesn't fall out of her chair during the State of the Union.
One would think Kennedy could at least give Justice Ginsberg a gentle nudge so she doesn’t fall out of her chair during the State of the Union.

Justice Scalia provided this quote in his dissenting opinion in the same-sex marriage decision that was issued today by the Supreme Court:

“Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans) or even a Protestant of any denomination. The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage. But of course the Justices in today’s majority are not voting on that basis; they say they are not. And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.”

Think about what this means:
In this decision, the Supreme Court is not acting as a judicial body, to answer a legitimate and important constitutional question–whether the Constitution proscribes the traditional definition of marriage. Instead, five men and women who are not representative in any fashion of our diverse country and who were not elected to serve as a representative body have made a subjective decision about whether the federal government, who will become a tyrant if we allow it, can impose same-sex marriage on the states. On constitutional principle, all Americans, regardless of their stand on same-sex marriage, should oppose this over-reach of judicial power because it threatens democracy. The judiciary should render judgment and “neither force nor will.” [The Federalist #78]

Justice Roberts also got it right:

“[T]his Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise “neither force nor will but merely judgment.”

Montesquieu said, “”Of the three powers above mentioned [executive, legislative and judiciary], the judiciary is next to nothing.” Perhaps the Supreme Court has gotten tired of its lowly position among the three powers and is leveraging for a takeover. I think, however, Obama will give them a run for their money. Monty also said,

“There is no crueler tyranny than that which is perpetuated under the shield of law and in the name of justice.”

Wake up, America! Democracy is slipping from your grasp.

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