The Supreme Court Vs Us

medical arial,sans-serif;”>By Gregory J. Welborn

This fourth week of June 2015 has witnessed the most historically significant events of our lifetime, and perhaps that of our children. Casual observers will point to the Supreme Court’s gay marriage decision, and some will throw in the Court’s immediate prior Obamacare decision in agreeing with this observation. But to do so – to point to the decisions themselves in attributing significance to the week’s events – is to miss the point entirely. It is the manner in which the Court made both decisions which is the larger issue, the truly historically significant issue, and the issue which portends great danger to our way of life – even for liberals – almost beyond comprehension by those living in a comfortable 21st century culture.

What happened this week was that a majority of jurists on our Supreme Court simply abandoned their constitutional role and decided two major, legacy shaping cases based on what they wanted the outcome to be rather than honor their commitment to rule on what the constitution actually said should happen.

In the case of the Obamacare decision, the justices simply ignored the plain and clear understanding of the words used in the affordable care act to interpret them in an opposite direction. It was as blatant as saying the word “can” really means “can’t”.

In the case of the gay marriage decision, the justices –as so beautifully detailed in Justice Kennedy’s majority opinion – used their desire for what a marriage could be and their valuation of what such a radical redefinition would mean to those entering into a gay marriage as substitutes for what the constitution says about gay marriage.

The truth is, as Chief Justice Roberts points out in his eloquent dissent, the constitution does not comment on what a marriage should be, nor does it state that the feelings of gay partners should be considered in the matter. The constitution says that the legality of gay marriage should be decided in each of the states by the people’s elected representatives. Out of 50 states, the people have decided in favor of gay marriage in 36 of them, and against gay marriage in 14. Those decisions, and those expressions of the will of the people, were simply vacated by five lawyers.

Whatever your view on gay marriage – and I have full sympathy for gays who love a member of their same sex and who want to bind themselves to that person for a lifetime – you cannot make the constitution agree with your position simply by saying it does. To do is to invalidate the benefits and blessings of the document itself. Those blessings and benefits apply to all of us, so the damage done to the document which has preserved our freedoms and enabled our way of life for 200+ years is almost incalculable.

But as difficult as it may be to see all that lies down the path chosen by five jurists of the Supreme Court, we can capture a glimpse of it.

Our founders were great students of human nature, and human nature has not changed much in several millennia. They knew that the greatest danger to freedom and prosperity lay in the ability of a faction – large or small – to impose their will on others. And so they purposely created a form of government meant to limit the power that any one group might amass and to force different groups to negotiate with one another to achieve a democratic consensus rather than to resort to the sword or gun.

The legislature and the executive (the Congress and the Presidency) were to be the natural repository of the political process and their decisions would thus naturally be the result of political calculation and bartering. The Supreme Court was meant to be the protector of the constitution, of the framework which prevented the too-easy use of the sword or gun. The Supreme Court was specifically not meant to be political, nor its members to rely on political calculation. They were to protect the constitution and interpret the questions brought to them accordingly.

That is why the President and members of the Congress were to be elected with prescribed terms, but the jurists of the Supreme Court were to be given life tenures. They were supposed to be insulated from political pressure. That is why the number of the legislature are large so that all groups in the nation would have opportunity to find representatives who would vote in their favor. But that is also why the number of the jurists was kept small, because they were supposed to simply, quickly, and faithfully interpret the law.

Of all the pledges and commitments sworn to, the most important one is the Supreme Court jurist’s promise to “support the constitution of the United States”. If that is violated in favor of political calculation, then the incredible power placed in the Supreme Court becomes a danger to everyone.

It cannot be overstated. When judges cross to the political side, they eviscerate all of our civil rights. Civil rights are those that the legislature and presidency should not be able to violate. When/if they attempt to do so, it is the Supreme Court which needs to stop them and protect us. If we are going to allow any five jurists out of a total of nine, who are accountable to no one, to make laws or to change the plain wording of laws in order to suit their desires at the moment, then we have lost both the protection of our civil rights and our most basic freedom to govern ourselves.

This was a key component of Justice Scalia’s dissent. For five members of the Supreme Court to re-write a law or ignore a law is to strip the people of the ability to make their own laws with confidence that they will be enacted and obeyed. This is the foundational freedom for which our revolutionary war was fought.

If such arbitrariness is the new foundation of our new system, then what is to prevent five different (or the same) judges from deciding that the constitution does [not] protect free speech or does [not] guarantee a jury trial, or that the President can [ignore] whatever law or portion thereof he or she dislikes because it fails to bring about the outcome desired?

The answer to the question is–nothing! If this is the new foundation, then there is nothing to prevent five unelected, unaccountable lawyers from deciding to force us do whatever they want us to do, and should we refuse, they will have the force of the sword or gun to command obedience.

As happy as some people are with the specific outcome of the gay marriage issue, hopefully they can, upon serious reflection, see just how dangerous this new foundation will be for them. Today, the arbitrariness of the political calculation of five people went in their favor. There will be a tomorrow, I promise you, when it will not so. We all will lose our rights and our freedoms unless this new foundation is destroyed and we return to the original.

We all will lose our rights and our freedoms unless this new foundation is destroyed and we return to the original.

Allow me to suggest what we must do. Some have called for a constitutional amendment defining marriage in the traditional way it has been understood. While that may solve the smaller problem, it will not return us to the foundation needed to protect all our freedoms. Our founders believed that lifetime appointments for the justices would protect those freedoms, but that assumed the justices would do their job. Since they have chosen not to – and there is no putting this genie back in the bottle – I would suggest that we need to amend the constitution to allow the re-appointment of Supreme Court justices on some interval longer than the normal political cycle, but much shorter than a lifetime. Whether that is 10 years, or 15 years, or some other interval, we must have a way of reigning in those who would usurp our freedoms to impose their own will. We must have a way of holding accountable all parts of a government of the people, by the people and for the people. Without it, we now have a government of five old lawyers.

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About the author: Gregory J. Welborn is a freelance writer and has spoken to several civic and religious organizations on cultural and moral issues. He lives in the Los Angeles area with his wife and 3 children and is active in the community. He can be reached [email protected]