Commentary by James Shott
Following
the American Revolution when the new nation realized it needed a new
controlling document, it replaced the Articles of Confederation with the
U.S. Constitution, under which the states had significant independence
from the federal government. The new government had a brilliant and
unique design that included three co-equal branches, each with its own
specific duties, limited authority and a system of checks and balances
so that no one branch could become dictatorial.
Mentioned first,
the Legislative Branch is the rule-maker, the single branch authorized
to make laws. Next, the Executive Branch is charged with administering
and enforcing the laws that Congress passes; and the Judicial Branch was
to be the referee that made sure that the actions of the Legislative
and Executive Branches comported with the dictates of the Constitution,
as Alexander Hamilton said, to determine whether laws passed by the
legislature were consistent with the fundamental and superior law of the
Constitution. And Chief Justice John Marshall, in weighing the validity
of a provision of the Judiciary Act of 1789, declared “It is
emphatically the province and duty of the judicial department to say
what the law is.”
Today we see that the Judiciary has become
politicized, putting Constitutional concerns on the back burner, as
demonstrated by two decisions by the U.S. Supreme Court last week.
First,
the Court turned plain language and constitutional law on its head, for
the second time, to deny challenges to the Affordable Care Act (ACA).
And then it redefined what marriage has been for centuries.
The
purpose here is not to argue against same-sex marriage or against
whatever few good things may have resulted from the ACA, but to argue
for proper judicial behavior in regard to interpreting Congressional
acts.
Contrary to the popular notion that the Constitution is a
“living document,” the meaning of which changes in response to the
prevailing winds of popular societal notions, the Constitution set forth
principles envisioned by the Framers as valid for the ages, and which
ought to be interpreted as such. Otherwise, what means one thing in 1795
could mean something totally opposite in 1895, and then completely
different from either meaning in 1995; the law being blown about on an
ever-changing sea.
In the first case last week, Chief Justice
John Roberts, voting with the majority, opined: “The Affordable Care
Act’s requirement that certain individuals pay a financial penalty for
not obtaining health insurance may reasonably be characterized as a
tax.” Had he not redefined a “penalty” as a “tax,” the ACA would have
overstepped its power in regulating interstate commerce. Last week, the
Chief Justice again voted to correct flaws in the law by deciding that
words don’t really mean what we thought they meant, saving the law’s
constitutionality for a second time.
In his scathing dissent of
that most recent ruling, Justice Antonin Scalia wrote: “The Court holds
that when the Patient Protection and Affordable Care Act says ‘Exchange
established by the State’ it [actually] means ‘Exchange established by
the State or the Federal Government.’ That is of course quite absurd,
and the Court’s 21 pages of explanation make it no less so.” “Words no
longer have meaning,’” he wrote.
Further, the Constitution does
not provide for the Supreme Court to correct errors in Congressional
acts so that they pass constitutional muster. Congress must fix its own
mistakes.
Chief Justice Roberts is thought to have been more
concerned with trying to protect the Court’s reputation by not
overturning a piece of popular legislation, rather than observing his
duty to uphold constitutional law.
And last week the Court also
voted to redefine what marriage is, with Justice Roberts returning to
proper judicial conservatism, voting with the minority this time.
Nothing
in the Constitution requires or allows the Supreme Court to redefine
marriage. Marriage is a social/cultural construction that has stabilized
the family as a bulwark social institution for thousands of years. The
court imposed its judgment about a policy matter that should be decided
by the American people through their elected state representatives, as
provided for by the Tenth Amendment to the Constitution. The definition
of marriage had already been broadened by 34 states, which is proper. If
some states decide not to change that definition, so be it.
Chief
Justice Roberts, who twice abandoned constitutional requirements in
finding the ACA to be legal, noted the following in dissent about the
same-sex marriage ruling: “If you are among the many Americans—of
whatever sexual orientation—who favor expanding same-sex marriage, by
all means celebrate today’s decision. Celebrate the achievement of a
desired goal. Celebrate the opportunity for a new expression of
commitment to a partner. Celebrate the availability of new benefits. But
do not celebrate the Constitution. It had nothing to do with it.”
The
Chief Justice properly noted the absence of constitutional authority in
the same-sex marriage case, but somehow did not understand that the
separation of powers prevents the Court from repairing the work of the
Congress, which behaved horribly in creating the Affordable Care Act.
If the people can no longer rely on the Supreme Court to objectively evaluate acts of Congress and the Executive, we are doomed.
Cross-posted from Observations
Showing posts with label Same-sex Marriage. Show all posts
Showing posts with label Same-sex Marriage. Show all posts
Tuesday, June 30, 2015
Thursday, April 05, 2012
NC Marriage Amendment On Ballot In May
NC Marriage Amendment On Ballot In May
Dems Worried It Will Pass
A Commentary by J. D. Longstreet
North Carolina has a republican controlled legislature, the first since the War Between the States. And it is driving the democrats wild.
NC’s current governor, a democrat, is not seeking reelection after having observed the “handwriting on the wall,” and it now seems certain the GOP will take the Governor’s office, as well, in November.
One of the items driving the NC dems mad is the proposed “Marriage Amendment” to the NC state constitution. Basically, it says marriage between one man and one woman is the ONLY kind of marriage to be recognized in North Carolina.
Understand that same-sex marriage is already banned in North Carolina by law or statute. Problem is, an activist judge can overturn a statute (or law). But a judge cannot overturn a constitutional amendment.
It will appear on the NC ballot on May 8th. The text of the measure reads as follows:
“Constitutional amendment to provide that marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State.”
Now. If the measure passes it will add an additional section to Article 14 of the North Carolina State Constitution: Section 6 will read thusly:
“Marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State. This section does not prohibit a private party from entering into contracts with another private party; nor does this section prohibit courts from adjudicating the rights of private parties pursuant to such contracts.”
Some lawmakers argue that the proposed amendment will hurt employment in the state. Rep. Larry Hall said, "Instead of creating an environment where we can create employment, attract entrepreneurs (and) attract talent, we're going to try to put a sign up to say, 'You are not welcome if you want to contribute to our society.” (SOURCE).
A handful of the mainline Christian denominations in North Carolina are opposing the amendment. And President Obama has voiced his dislike of the bill. No surprise there.
Now, here’s the problem for democrats in North Carolina May 8th. The problem, at first glance, may not register with you, but stay with me.
North Carolina’s black voters are expected to turn out, in droves, to vote for Obama in November. But -- the Democratic Party desperately needs them to turn out for the May primary, as well. If the “get out the vote” drive in the black community is successful, then it could very well result in passage of the Marriage Amendment.
Now, here’s where it gets interesting: Black voters in North Carolina, by and large, do not support same-sex marriage. Blacks attend church in North Carolina, and like many of their white brothers and sisters who also attend church; they believe the teachings of the scriptures from which their pastors preach on Sundays.
As uncomfortable as it may be for some, the scriptures, both Old and New Testaments, speak out loud and long -- and as clear as crystal -- that homosexuality is a sin. Conservative Christians, both black and white, in North Carolina believe that. It is an integral part of their faith, their religion.
Public Policy Polling, which is based in Raleigh, North Carolina, released the results of a survey on Thursday March 29th in which they found there is, indeed, strong support for the proposed amendment to the North Carolina constitution.
P.P.P. surveyed 1,191 North Carolinians who stated they were likely to vote in the May 8th Primary. The Marriage Amendment proposal will be on the primary ballot as a statewide referendum.
P.P.P. found that 58% of those polled said they would vote in favor of the amendment. Only 38% told them they opposed the amendment.
Breaking the survey down a bit wore we find that roughly 76% of Republicans surveyed said they support the amendment while 48% of Democrats (who were surveyed) also support the amendment -- and -- 47% of Democrats, in the same survey, oppose the amendment.
But here is the part of the survey that has NC Democrats concerned: The survey found that among black voters 61% are in favor of the amendment while only 30% oppose it.
You can now see how the heavy black voter turnout in May is more than a little worrisome for those who oppose the Marriage Amendment in North Carolina. It is a something of a conundrum for the folks on the political left.
The supporters of same-sex marriage, in order to convince blacks to vote against the measure, have mounted a campaign to convince NC voters that denying same-sex marriages is “discrimination.” They’re claiming it is a civil rights issue. A portion of NC black folk will have none of it. In fact, they resent it. Frankly, it also riles the white folk in Tar Heel country, too. Also, it deeply irritates white Tar Heel voters when those opposing the Marriage Amendment accuse them of hate.
In my opinion, the measure will be passed and the NC Constitution will be amended – because the people of North Carolina believe it is the right thing to do.
J.D. Longstreet
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