Judicial Activism
and the Constitutional Amendment on
Marriage
By Susan Shelley
Do we need a constitutional amendment to ban same-sex
marriages in America?
If you support a ban on gay marriage, the answer is
yes. The U.S. Constitution requires all states to recognize the legality
of marriages performed in all other states, and in Massachusetts, the Supreme
Judicial Court has ruled that barring an individual from marrying a person
of the same sex violates the state constitution's Equal Rights
Amendment.
Three of the seven justices on the Massachusetts high
court disagreed with the majority's opinion. One pointed out that the state
Equal Rights Amendment was presented to the voters in 1976 with the explicit
guarantee that "an equal rights amendment will have no effect upon the allowance
or denial of homosexual marriages."
But the majority held that "civil marriage is an evolving
paradigm" and that "the history of constitutional law 'is the story of the
extension of constitutional rights and protections to people once ignored
or excluded.'"
This is known in some circles as judicial
activism.
Do we need judicial activism? Judge for yourself:
The Massachusetts high court acknowledged that its
decision marked "a change in the history of our marriage law" but said "history
must yield to a more fully developed understanding" of the effects of
discrimination. The justices cited as authority, among other cases, Bolling
v. Sharpe.
Bolling v. Sharpe is the 1954 Supreme Court
ruling that desegregated the public schools of Washington, D.C. It held that
school segregation was prohibited by the due process clause of the Fifth
Amendment.
The Bolling v. Sharpe decision cited as precedent
the landmark Brown v. Board of Education decision, handed down the
same day, which held that school segregation was prohibited by the equal
protection clause of the Fourteenth Amendment.
The equal protection clause couldn't be used to desegregate
the schools of Washington, D.C., however, because the Fourteenth Amendment
only applies to the states, and the District of Columbia is not a state,
but is under the direct control of Congress. The Fifth Amendment applies
to Congress, but it doesn't have an equal protection clause. So the Supreme
Court became creative.
"In view of our decision that the Constitution prohibits
the states from maintaining racially segregated public schools," Chief Justice
Earl Warren wrote, "it would be unthinkable that the same Constitution would
impose a lesser duty on the Federal Government. We hold that racial segregation
in the public schools of the District of Columbia is a denial of the due
process of law guaranteed by the Fifth Amendment to the Constitution."
The Court ignored some inconvenient history. First,
the Fourteenth Amendment had specifically left segregation in place, and
second, Congress had maintained segregated schools in the District of Columbia
for ninety years without anyone ever finding it to be a violation of the
Fifth Amendment's due process clause. But segregation had to go, in the Court's
unanimous view, and it went.
Since 1954, the Supreme Court has used the due process
clauses of the Fifth and Fourteenth Amendments to invent many of the rights
we take for granted today. There never was a constitutional amendment to
ban racial or gender discrimination, or to establish a constitutional right
of privacy, or to prohibit the states from infringing freedom of speech.
In fact, the entire Bill of Rights was intended to apply only to the federal
government. If you're ever arrested by state and local authorities, you can
thank the U.S. Supreme Court for the right to remain silent, the right to
be free from unreasonable searches and seizures, and the right to trial by
jury.
All of this was judicial activism.
If we want to be rid of judicial activism, we will
have to amend the Constitution not just to reverse unpopular decisions, but
to confirm popular ones. As long as we allow judicial interpretations to
substitute for constitutional amendments, we will have judges who rewrite
laws to suit their own ideas of fairness.
Is it necessarily a bad idea to let unelected judges
rewrite laws?
The Constitutional Convention gave it some thought
in 1787. The delegates considered a proposal for a Council of Revision that
would have allowed federal judges to weigh in on bills before they were signed
into law. James Wilson of Pennsylvania pointed out that "laws may be unjust,
may be unwise, may be dangerous, may be destructive; and yet not be so
unconstitutional as to justify the Judges in refusing to give them
effect."
The Council of Revision proposal was voted down twice
and never seen again.
Judges "are not to be presumed to possess any peculiar
knowledge of the mere policy of public measures," said Nathaniel Gorham of
Massachusetts. "The Judges must interpret the laws," said John Dickinson
of Delaware, "they must not be legislators."
The Constitution set up a system of government in which
laws are made by representatives who are accountable to the voters, not by
judges who are protected from the voters by lifetime appointments. The courts
may think the legislatures move too slowly, but the Constitution does not
authorize them to usurp the lawmakers' power in order to speed things
up.
George Washington warned us about this in his Farewell
Address to the nation. "If in the opinion of the People, the distribution
or modification of the Constitutional powers be in any particular wrong,"
President Washington said, "let it be corrected by an amendment in the way
which the Constitution designates. But let there be no change by usurpation;
for though this, in one instance, may be the instrument of good, it is the
customary weapon by which free governments are destroyed."
February 13, 2004
© Copyright 2004 by Susan
Shelley
Source Notes:
U.S. Constitution,
Article IV, Section 1: "Full Faith and Credit shall
be given in each State to the public Acts, Records, and judicial Proceedings
of every other State." The Constitution can be read online
at:
The Massachusetts case is Goodridge v. Department
of Public Health, November 2003, Docket No. SJC-08860. The quotation
from the dissenting opinion is taken from the dissent of Justice Cordy. The
full decision can be read online at:
Bolling v. Sharpe, 347
U.S. 497 (1954)
Brown v. Board of
Education, 347 U.S. 483 (1954)
For complete notes on the history of the Fourteenth
Amendment and segregation, Supreme Court rulings applying the Bill of Rights
to the states, and the Council of Revision debate, please see the appendix
to
The 37th Amendment, online at:
Or read the expanded and updated eBook edition,
How the First Amendment Came to Protect
Topless Dancing, available at:
George Washington's Farewell Address, delivered
on September 19, 1796, can be read online at the University of Virginia Web
site:
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