In 1819, Jefferson spoke out against judicial activism, saying: “The Constitution is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.”
Recently we have seen judicial activism on steroids at the Supreme Court. That is especially true in their hubris-laden decision to set aside “the laws of nature and of nature’s God” and say that same-sex marriage is now the law of the land in all 50 states. Period.
We-a-slim-majority-of-the-Court have spoken. And there it is. To me the big issue boils down to authority. By what authority did a majority do this?
As Chief Justice Roberts himself said, you can celebrate this decision if you want to, but the bottom line is it had nothing to do with the Constitution.
If the Constitution means whatever the justices want it to say, then the nation is like a great ship set adrift without a rudder—or worse, with a rudder forcing us to go on its inexorable way toward a great waterfall.
Those who applaud such in imposition of power may not be so enthusiastic if another arbitrary authority arises which doesn’t share their values. ISIS marked the Supreme Court’s decision over the weekend by throwing off alleged homosexuals off tall buildings in Syria, as crowds below cheered on. I’m sure those poor victims received no due process.
The United States of America has been a great and noble experiment. How can sinful man govern sinful man in a way that allows freedom—including for those who don’t share the same values? Power had to be balanced and parceled out, lest we have a monarchy or an oligarchy, a rule by the few.
This was the genius of the American system. It gave us great freedoms. But now, we’re in a scenario essentially of “might makes right.”
Justice Samuel Alito dissented in this case, noting: “The system of federalism established by our Constitution provides a way for people with different beliefs to live together in a single nation….By imposing its own views on the entire country, the majority [of this Court] facilitates the marginalization of the many Americans who have traditional ideas.”
He added, “If a bare majority of Justices can invent a new right and impose that right on the rest of the country, the only real limit on what future majorities will be able to do is their own sense of what those with political power and cultural influence are willing to tolerate. Even enthusiastic supporters of same-sex marriage should worry about the scope of the power that today’s majority claims.”
Scalia noted in his dissent, “Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.”
In short, what matters now is who’s got the power—in this case one man, Justice Anthony Kennedy. In a different context, satirist Tom Lehrer sang: “Might makes right, until they see the light…” That is such a dangerous place to be, for the annals of history are filled with the bloody trail of abuses of power, even among so-called enlightened people.
One of the greatest books summarizing the history of the 20th century—the bloodiest century on record because of the anti-God views of so many leaders, i.e., Stalin, Hitler, Mao, Pol Pot, etc.—is Modern Times by the excellent British historian Paul Johnson.
He noted that at the end of the 19th century, many intellectuals were claiming that God was dead. This created an incredible vacuum.
Johnson writes, “The history of modern times is in great part the history of how that vacuum had been filled….In place of religious belief, there would be secular ideology…above all, the Will to Power would produce a new kind of messiah, uninhibited by any religious sanctions whatever…The end of the old order, with an unguided world adrift in a relativistic universe, was a summons to such gangster-statesmen to emerge.”
Anthony Kennedy’s decision on Friday, written in the voice of a philosopher-king, rather than a judge, divorced marriage from the norms of history, world civilization, and God.
Justice Clarence Thomas wrote in his dissenting opinion, “Aside from undermining the political processes that protect our liberty, the majority’s decision threatens the religious liberty our Nation has long sought to protect.” Thus, they have turned the Constitution on its head, granting a right not found there that will trump rights explicitly spelled out there.
In 1821, Jefferson warned, “The germ of dissolution of our federal government is in . . . the federal judiciary.”
I can only take comfort in the fact, as Alveda King reminds us, that God will have the final word, Said the Apostle Paul, “Let God be true and every man a liar.”