By David P. McGinley
I do not know what is worse -- that a federal judge unilaterally redefined the several millennia old definition of marriage or that constitutional "experts" from both sides of the marriage argument agree that this issue will inevitably be "settled" by Supreme Court Justice Anthony Kennedy. Thus, one judge (one man) may get to tell over 300 million people how they are to order (or re-order) the very basis of their society. How did it come to this?
Our Constitution is almost dead. It is being killed by judges who ignore the actual text of the document but find heretofore unknown devices in its "penumbras and emanations." When these judges actually do consider the text it is usually to redefine it or replace it with other words that reconcile with their own personal beliefs and feelings. Thus, the actual text is usurped thereby leaving our national compact meaningless.
For instance, the "Commerce Clause," which, inter alia, authorizes Congress to "regulate commerce . . . among the several States . . ." has been redefined to basically no longer even require commerce or require more than one state. This clause is now interpreted to mean anything "affecting" commerce can be regulated by Congress. Of course, an argument, tangentially or not, can be made that everything affects commerce in some way. Accordingly, this limited grant of power has become almost unlimited. Is it any wonder that members of Congress think they can do almost anything?
Another example can be clearly seen in "Establishment Clause" jurisprudence. In fact, it is rarely even called this anymore having been rebranded as the "separation of church and state." The clause is the first one in the First Amendment and reads "Congress shall make no law respecting an establishment of religion . . . ." Today, neither Congress, nor a law, nor an establishment of religion needs to be involved to run astray of this provision. All that is needed is for someone to "take offense" at a putative government "endorsement" of religion (e.g., a Christmas tree on public land). The fact that such appears nowhere in the text is of no matter.
The debasement of the "Takings Clause" is another egregious example. That clause, which appears in the Fifth Amendment, states "nor shall private property be taken [by the government] for public use, without just compensation [to the private property owner]." The term "public use" is (or was) key to this clause. Historically it was understood that if the government wants your property, it must buy it from you, at market value, and the reason must be for a public use (e.g. building a public road). All of that changed five years ago when the Supreme Court decided that "public use" really meant "public purpose." The "public purpose" in that case was so that Pfizer Corporation, a private pharmaceutical company, could build a new facility. Thus, another specific restriction on government was repealed by judicial fiat leaving then Justice Sandra Day O'Connor to write in her dissent "all private property is now vulnerable to being taken and transferred to another private owner . . . ." Isn't that just great?
A brutal blow to the health of our Constitution was delivered when the court created the "right to privacy." The court created this from the "Due Process Clause" in the Fourteenth Amendment. That clause states "nor shall any state deprive any person of life, liberty, or property without due process of law . . . ." From this judicial creation, the court has concocted, among other things, the right to abortion. Many are hopeful that the aforementioned Justice Kennedy will create the right to "gay marriage" from there. The Fourteenth Amendment of course was ratified in 1868 specifically to protect the newly freed slaves and the "Due Process Clause" was to ensure that the laws of the United States were applied equally to all. It goes without saying that neither abortion, nor homosexual marriage have anything to do with the Fourteenth Amendment or that clause.
Finally, there is the judicial phenomenon of reversing the meaning of the text. For an example of this one needs just go back to the Fourteenth Amendment and its "Equal Protection Clause." That clause provides that a state shall not "deny to any person within its jurisdiction the equal protection of the laws." This "equal protection" has been interpreted to allow for "affirmative action," which is just a euphemism for race-based, sex-based and ethnic-based government favoritism. Such favoritism assuredly precludes equal protection but Justice O'Connor, in one of her less lucid moments while on the bench, said such unequal treatment was okay so long as it only lasted for another 25 years or so. Does anyone think the "Wise Latina" will enforce that deadline when the time comes?
When judges disregard or redefine the plain words of our Constitution or make up things with absolutely no textual support, they render the document meaningless. In keeping with this practice, its proponents have invoked the Orwellian term "living constitution" when in actuality they have put it on its death bed.
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