The Fortune Cookie Court

 

oct 31 the fortune cookie 1

“The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”
-Obergefell v. Hodges, 576 U.S. ___ (2015),
Antonin Scalia (J., dissenting).

In Obergefell v. Hodges v. Hodges, 576 U.S. ___ (2015), five justices of the United States Supreme Court hold that states must license marriages between same-sex couples. Furthermore, states must recognize marriages between same-sex couples performed in other states. Obergefell v. Hodgesexpressly restricts the right of the American people to govern ourselves. Issues “may not be submitted to a vote” if a majority of the Supreme Court decides they involve a “fundamental right.” Only the Supreme Court can decide those issues. Democratic processes are “of no moment”” if the Supreme Court claims an “enhanced understanding” of an issue.

So what is a fundamental right? The Obergefell v. Hodges majority tells us that “new insights” reveal that same-sex marriage is now a fundamental right. Before Obergefell v. Hodges, fundamental rights were limited to rights that were “deeply rooted in this nation’s history and tradition.” Since same-sex marriage does not fit this definition, the five Obergefell v. Hodges justices simply make new law and change the definition of fundamental right.

Obergefell v. Hodges redefines fundamental rights to include “rights that allow persons, within a lawful realm, to define and express their identity.” Fundamental rights also include “personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.” Justice Scalia calls these definitions “the mystical aphorisms of the fortune cookie.”

They may be mystical aphorisms, but they are not legal standards. They provide no guiding principles. The only way to know whether a claimed right is fundamental is for five justices of the Supreme Court to tell us it is so. Aye, there’s the rub. Obergefell v. Hodges marks our nation’s transition from a government of laws to a government of men.

The Obergefell v. Hodges decision replaces government “of the People, by the People, and for the People” with government “by an unelected committee of nine.” Justice Scalia writes that the Obergefell v. Hodges decision “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. This practice of constitutional revision by an unelected commit­tee of nine robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.” In sum, the Obergefell v. Hodges decision repeals our right to govern ourselves and reposes that right in the private discretion of Supreme Court justices.

The following discussion begins by summarizing the SupremeCourt’s majority opinion in its own words. The second part of this discussion summarizes the dissenting opinions, again in their own words, and analyzes the majority opinion from a Constitutional perspective. The third part of this discussion analyzes the Obergefell v. Hodges decision from the perspective of legal history. The conclusion predicts the future impact of the Obergefell v. Hodges decision.

Regarding legal history, the Western legal tradition teaches that legal systems must fulfill three requirements to uphold the rule of law. First, they must enforce the autonomy of law over the will of political rulers. Second, they must draw their authority from the consent of the governed. Third, they must separate the power to make law from the power to enforce law.

Legal systems that embrace these requirements succeed in upholding the rule of law. Legal systems that reject them become tyrannical. They are inevitably supplanted by legal revolution. Sadly, as explained below, the Obergefell v. Hodges decision rejects all three requirements.oct 31 the fortune cookie 2

Part I: Summary of the Majority Opinion

Facts of the Case: Fourteen same-sex couples, and two men whose partners were deceased, brought suit against state agencies in Ohio, Michigan, Kentucky, and Tennessee. Plaintiffs sought two claims for relief. First, they asked the Supreme Court to force state officials to permit same-sex marriages in their states. Second, they asked the Court to force state officials to recognize same-sex marriages performed in other states.

Majority Holding: In a 5-4 decision, the Supreme Court granted both claims for relief under the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. The text of the Fourteenth Amendment provides in relevant part as follows: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” [Emphasis added]. Neither the Due Process Clause nor the Equal Protection Clause mentions marriage.

Majority Reasoning: The Supreme Court held that the Fourteenth Amendment requires states to license marriages between same-sex couples. The Supreme Court reached its desired result in three steps.

First, the Due Process Clause of the Fourteenth Amendment protects fundamental liberties. Marriage is a fundamental right protected by the Due Process clause, regardless of the sex of the couple.

Second, the Equal Protection Clause of the Fourteenth Amendment protects the rights of same-sex couples to marry. States, therefore, cannot prohibit same-sex marriages.

Third, the Supreme Court can take action to protect same-sex couples, without action by any legislative body, because the Supreme Court “already has an enhanced understanding of the issue.” Democratic processes are inappropriate, unnecessary, and “of no moment” in cases involving fundamental rights.

The following discussion summarizes each of these steps, using the Court’s own language.

Step One: Marriage is a fundamental right under the Due Process Clause of the Fourteenth Amendment. The Due Process Clause of the Fourteenth Amendment protects “fundamental liberties.” The fundamental liberties protected by Due Process Clause of the Fourteenth Amendment include most of the rights enumerated in the Bill of Rights. These enumerated rights, however, are not the only protected rights. “In addition these liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.”

The identification and protection of fundamental rights is part of the judicial duty to interpret the Constitution. Although history and tradition guide and discipline this inquiry, history and tradition “do not set its outer boundaries.” “When new insight reveals discord between the Constitution’s central protections and a received legal structure, a claim to liberty must be addressed.”

The Supreme Court states four “principles and traditions” establishing marriage as a fundamental right for same-sex couples. First, “the right to personal choice regarding marriage is inherent in the concept of individual autonomy.” Second, “the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.” Third, protecting the right to marry “safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education.” Fourth, “marriage is a keystone of our social order.” Quoting Tocqueville’s Democracy in America, the Court states “there is certainly no country in the world where the tie of marriage is so much respected as in America.” The Court then concludes that “marriage is the foundation of the family and of society, without which there would be neither civilization nor progress.”

Step Two: The Equal Protection Clause of the Fourteenth Amendment protects the right of same-sex couples to marry. The state marriage laws challenged in this case unequally burden the liberty of same-sex couples to marry. By denying benefits afforded opposite sex couples, these laws bar same-sex couples from exercising a fundamental right. Given the “long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them.” The Court concluded that “the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry.”

Step Three: The Supreme Court can ignore democratic processes to protect fundamental rights. The Court states that “[t]here may be an initial inclination in these cases to proceed with caution—to await further legislation, litiga­tion, and debate.” Nevertheless, the Court declined to wait, insisting on imposing its will on the nation. As shown below, the Court also held democratic processes are inappropriate, unnecessary, and irrelevant in this case since the Supreme Court had an “enhanced understanding” of the issue.

Democratic processes are inappropriate in this case. Although “the Constitution contemplates that democ­racy is the appropriate process for change,” democratic processes are inappropriate if they

“abridge fundamental rights.” “Thus, when the rights of persons are violated, the Constitution requires redress by the courts, notwithstanding the more general value of democratic decision-making.”

Democratic processes are not needed in this case. “There have been referenda, legislative debates, and grassroots campaigns, as well as countless studies, papers, books, and other popular and scholarly writings.” All these have given the United States Supreme Court an “enhanced understanding of the issue.”

Democratic processes are “of no moment” in this case. “Fundamental rights may not be submitted to a vote; they depend on the outcome of no elections. It is of no moment whether advocates of same-sex marriage now enjoy or lack momentum in the democratic process.”

Majority Conclusions:

The Supreme Court reached three conclusions. First, same-sex marriage is a fundamental right under the Due Process Clause of the Fourteenth Amendment. This right is “fundamental,” even though it is not contained in the text of the Constitution, because it involves “personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.”

Second, “same-sex cou­ples may exercise the fundamental right to marry in all States.” The Equal Protection Clause of the Fourteenth Amendment “does not permit any State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.”

Third, states must recognize marriages between same-sex couples performed out-of-state. “There is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.” have a great time

Part II: Summary of the Dissenting Opinions

oct 31 the fortune cookie 3Dissent by Chief Justice John Roberts, joined by Justices Antonin Scalia and Clarence Thomas. Chief Justice Roberts criticizes the majority for exceeding the Supreme Court’s Constitutional authority. Roberts begins his dissent by stating “this Court is not a legislature.” “Under the Constitution, judges have the power to say what the law is, not what it should be.” Roberts quotes the Federalist No. 78, which states that “the people who ratified the Constitution authorized courts to exercise neither force nor will but merely judgment.” The majority in Obergefell v. Hodges exceeded the people’s authority.

“The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or in this Court’s precedent.” The majority decision “invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?”

The fundamental right to marry does not include the right to make a State change its definition of marriage. “For those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening.” “Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.”

Roberts emphasizes that his dissent is not about whether the institution of marriage should be changed to include same-sex couples. Instead, his dissent is “about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law.” The Constitution, he concludes, “leaves no doubt” that the decision should rest with the people acting through their representatives.

“The Constitution itself says nothing about marriage,” Roberts continues, “and the Framers thereby entrusted the states with the whole subject of the domestic relations of husband and wife.” The Court is “not affirming any right enumerated in the Constitution, such as the freedom of speech protected by the First Amendment.” Instead, the Court is implying a right to same-sex marriage under the Fourteenth Amendment. “When the fixed rules which govern the interpretation of laws are abandoned, and the theoretical opinions of individuals are allowed to control the Constitution’s meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have the power to declare what the Constitution is, according to their own views of what it ought to mean.”

Roberts closes his dissent with three predictions. First, the majority’s reasoning will require recognition of a fundamental right to plural marriage. “It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage.” “If there is ‘dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices,’ why would there be any less dignity in the bond between three people?” “If the majority is willing to take a big leap [finding a right to same-sex marriage], it is hard to see how it can say noto the shorter one [finding a right to plural marriage].”

Second, the Court’s repudiation of democratic processes will have negative consequences. “The Court’s accumulation power does not occur in a vacuum. It comes at the expense of the people. And they know it.” “There will be consequences to shutting down the political process on an issue of such profound public significance.” “People denied a voice are less likely to accept the ruling of the court on an issue that does not seem to be the sort of thing courts usually decide.” Heavy-handed judicial intervention is difficult to justify. It provokes rather than resolves conflict.

Third, the Court’s decision poses an ominous threat to religious liberty. “Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage. There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they received from the majority today.”

Dissent by Justice oct 31 the fortune cookie 4Antonin Scalia, joined by Justice Clarence Thomas.

In an excoriating dissent, Justice Scalia criticizes the majority opinion as “a naked judicial claim to legislative – indeed, super-legislative – power; a claim fundamentally at odds with our system of government.” “Except as limited by constitutional prohibition agreed to by the People,” Scalia continues, “the States are free to adopt whatever laws they like.” The Constitution, Scalia points out, contains no requirement that States recognize same-sex marriages.

To emphasize this point, Scalia reminds us that Justice Kennedy, the author of the Obergefell v. Hodges majority opinion, wrote the following language just two years earlier in United States v. Windsor, 570 U.S. ___ (2013):

Regulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States. The Federal Government, through our history, has deferred to state-law policy decisions with respect to domestic relations.

In other words, there was no fundamental right to same-sex marriage two years ago under Windsor. Instead, same-sex marriage was an issue of state law. Kennedy was joined in Windsor by the same justices who joined him in the Obergefell v. Hodges majority opinion.

Scalia then addresses the anti-democratic effect of the majority opinion. “A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called democracy.” Scalia emphasizes the anti-democratic effect of Obergefell v. Hodges by describing “the strikingly unrepresentative character of the body voting on today’s social upheaval.”

This Court consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale law school. Four of the nine are natives of New York City. Eight of them grew up in East-and West-Coast States. Only one hails from the vast expanse in between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises one quarter of Americans) or even a Protestant of any denomination… And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principal even more fundamental than no taxation without representation: no social transformation without representation. [Emphasis added].

Scalia next likens the majority opinion’s reasoning to “the mystical aphorisms of a fortune cookie.” The majority opinion opens with this line. “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, with a lawful realm, to define and express their identity.” Scalia responds. “If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began [this way], I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”

Scalia closes his dissent with an ominous warning. The Supreme Court’s usurpation of self-government in the Obergefell v. Hodges decision will ultimately render the Supreme Court impotent:

Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before a fall. The Judiciary is the “least dangerous” of the federal branches because it has “neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm” and the States, “even for the efficacy of its judgments.” With each decision of ours that takes from the People a question properly left to them—with each decision that is unabash­edly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence.

 

oct 31 the fortune cookie 5Dissent by Justice Samuel Alito, joined by Justices Antonin Scalia and Clarence Thomas.

Justice Alito’s thoughtful dissent characterizes the majority decision as an abuse of power, a repudiation of federalism, and a “deep and perhaps irremediable corruption of our legal culture’s conception of constitutional interpretation.”

 

The majority decision is an abuse of judicial power. The power to formulate policies on same-sex marriage is a power within the exclusive province of the States. “The Constitution says nothing about a right to same-sex marriage,” and the Constitution leaves the question of same-sex marriage “to be decided by the people of each State.”

“Our nation was founded upon the principle that every person has the unalienable right to liberty, but liberty is a term of many meanings.” “To prevent five unelected Justices from imposing their personal vision of liberty upon the American people, the Court has held that ‘liberty’ under the Due Process Clause should be understood to protect only those rights that are ‘deeply rooted in this nation’s history and tradition.’ And it is beyond dispute that the right to same-sex marriage is not among those rights.”

“For today’s majority, it does not matter that the right to same-sex marriage lacks deep roots or even that it is contrary to long-established tradition. The justices in the majority claim the authority to confirm constitutional protection upon that right simply because they believe that it is fundamental.” This decision, writes Alito, “usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage.”

The majority decision repudiates our system of federalism. “The system of federalism established by our Constitution,” writes Alito, “provides a way for people with different beliefs to live together in a single nation.” “By imposing its own views of the entire country, the majority facilitates the marginalization of many Americans who have traditional ideas. Recalling the harsh treatment of gays and lesbians in the past, some may think the turnabout is fair play. But if that sentiment prevails, the Nation will experience bitter and lasting wounds.”

oct 31 the fortune cookie 6The majority decision corrupts Constitutional interpretation. The Obergefell v. Hodgesopinion is an abuse of judicial power evidencing a “deep and perhaps irremediable corruption of our legal culture’s conception of constitutional interpretation.” Obergefell v. Hodges will have “a fundamental effect on this Court and its ability to uphold the rule of law. 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.”

Like the other dissenters, Alito closes his dissent with predictions and warnings. TheObergefell v. Hodges decision “will be used to vilify Americans who are unwilling to assent to the new orthodoxy.” “I assume that those who cling to old beliefs will be able to whisper their thoughts and recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.”

Alito observes that the Obergefell v. Hodges decision “shows that decades of attempts to restrain this Court’s abuse of its authority have failed.” Alito closes his dissent with this sobering admonition. Regardless of their view on same-sex marriage, “All Americans should worry about what the majority’s claim of power portends.”

Part III: Historical Analysis

The history of the Western legal tradition shows that legal systems must fulfill three requirements to uphold the rule of law. First, political rulers must respect the autonomy of law. Second, the laws must reflect the consent of the governed. Third, the laws must separate the power to make law from the power to enforce law.

Legal systems that fulfill these requirements succeed in upholding the rule of law. Legal systems that violate these requirements, however, become tyrannical. They are inevitably overthrown by “legal revolutions.” As Harvard Law Professor Harold Berman demonstrates in his classic Law and Revolution (1983), the Western legal tradition has experienced seven legal revolutions since the end of the Middle Ages.

The United States is the heir of two of these revolutions. The first was the English Legal Revolution of 1603-1701. England suffered tyranny for a century before she finally ousted the Stuart dynasty. Sir Edward Coke’s Institutes on the Lawes of England (1642) revived the Magna Carta (1215). Three civil wars followed. Finally, the Glorious Revolution produced the English Bill of Rights (1689), the precursor of our own Bill of Rights.

England denied the rights guaranteed by the English Bill of Rights to the American colonists. The result was the American Legal Revolution of 1775-1789. The American Legal Revolution ultimately produced the United States Constitution and the American Bill of Rights. It also adopted the consensual system of common law described in Sir William Blackstone’s Commentaries on the Laws of England (1765-1769).

The legal system established by the Constitution and the Bill of Rights took the hard lessons of legal history to heart. It fully embraced the three requirements for upholding the rule of law. First, it established the autonomy of law over political rulers. Second, it limited its powers to those granted by the consent of the governed. Third, it carefully separated the power to make law from the power to enforce law.

Unlike our Constitution and Bill of Rights, however, the Obergefell v. Hodges decision rejects each of these requirements. The following explains the consequences of these rejections.

Obergefell v. Hodges rejects the autonomy of law. The first requirement for upholding the rule of law is the autonomy of law over political rulers. The autonomy of law establishes a government of laws, not men. It is the oldest principle in the Western legal tradition, and one fully embraced by our Founders.

Autonomy of law has three requirements. First, laws must wield supremacy over political rulers, including judges. Second, political rulers, including judges, are bound by the same laws as their subjects. Third, political rulers, including judges, must enforce the law. They have no discretion to ignore applicable laws or suspend their enforcement.

Athens was infamous throughout the ancient world for unjust laws and unstable governments. Plato and Aristotle toiled to understand the causes and cures of these evils. Plato concludes that the autonomy of law is more important than any other aspect of law or government. Plato writes in The Laws (360 BC) that “I am persuaded that the preservation or ruin of a society depends on the autonomy of law more than anything else. Where the law is overruled or obsolete, I see destruction hanging over the community; where it is sovereign over the authorities and they its humble servants, I discern the presence of salvation and every blessing heaven sends on a society.” [Emphasis added].

Aristotle agrees. Aristotle also ponders whether states are better governed by laws or by men. Aristotle chooses laws and writes in the Politics (350 BC) that “rightly constituted laws must be the final sovereign.”

The autonomy requirement dominates the first great treatise of common law, Henry de Bracton’s On the Laws and Customs of England (c. 1235). De Bracton establishes the principle of autonomy by holding the king to be under the law. “The laws make the king. The king does not make the laws. There is no rightful king where his will and not the law has dominion.”

The great English jurist Sir Edward Coke imposed the autonomy of the common law over the king, the Parliament, and the courts. Coke famously cited de Bracton’s maxim that “the law makes the king, the king does not make the laws” against James I in the case of Prohibitions del Roy (1607). When the Stuarts consistently ignored the autonomy of law, England rebelled in three civil wars. Charles I was ultimately executed in 1647. The “Glorious Revolution” finally ended Stuart tyranny in 1689.oct 31 the fortune cookie 7

John Locke, writing at the end of the English Legal Revolution, emphasizes the autonomy of law in his Second Treatise on Government (1689). Thomas Jefferson considered Locke’s Second Treatise to be the “perfect” work on political philosophy and uses it as his primary source for the Declaration of Independence. Locke writes in the Second Treatise that “wherever law ends, tyranny begins.” Political rulers who violate the autonomy of law are rightfully resisted. “Whosoever in authority exceeds the power given him by the law, and acts without authority, may be opposed, as any other man, who by force invades the right of another.”

When England ignored the autonomy of law in her dealings with the American colonies, the colonists revolted and formed their own nation. The Americans recognized the necessity of autonomous laws from the beginning. Thomas Paine celebrated the autonomy of law in “Common Sense” (1776). “Let a day be solemnly set apart for proclaiming the charter; let it be brought forth . . . so the world may know, that as far as we approve of monarchy, that in America the law is king. For as in absolute governments the king is law, so in free countries the law ought to be king; and there ought to be no other.”

The five justices of the Obergefell v. Hodges majority ignore all three requirements of the autonomy of law. First, the law does not wield supremacy over them. They assert their supremacy over the law instead, making new laws to accomplish their desired outcome.

Second, they are not bound by the Constitution like every other American. Instead, they claim the power to bind all Americans by artificially creating new Constitutional rights. They share the view of former Chief Justice Charles Evans Hughes that “we are under a Constitution, but the Constitution is what the judges say it is.”

Third, they ignore laws they dislike. They ignore the federal system established by the Tenth Amendment that gives the states sole control over marriage laws. The five justices of the Obergefell v. Hodges majority even ignore their own words in their opinion in United States v. Windsor, 570 U.S. ___ (2013). They wrote in Windsor that marriage laws have “long been regarded as a virtually exclusive province of the States.”oct 31 the fortune cookie 8

Obergefell v. Hodges rejects the consent of the governed. The second requirement for upholding the rule of law is the consent of the governed. The consent of the governed protects liberty against tyranny. The Declaration of Independence states that men are endowed by their Creator, not their judges, with inalienable rights of life, liberty, and the pursuit of happiness. Men form governments to protect these rights, and governments derive “their just powers from the consent of the governed.”

Jefferson adopts these ideas from Locke. Locke describes the principle of consent in his Second Treatise on Government (1689). “Men being, as has been said, by nature, all free, equal, and independent, no one can be put out of this estate, and subjected to the political power of another, without his own consent.”

Our Constitution binds us because We the People consented to its text through ratification. But as each dissenting justice observes, there is no enumerated right to same-sex marriage in the Constitution. The five majority justices in Obergefell v. Hodges violate the principle of consent by manufacturing such a right. Furthermore, they boldly state that the consent of the American people is inappropriate, unnecessary, and “of no moment” on the issue of same-sex marriage.

Obergefell v. Hodges rejects the separation of the powers to make law and enforce law. The third requirement for upholding the rule of law is the separation of the legislative power to make law from the judicial power to enforce law. Like the consent of the governed, the separation of powers protects liberty against tyranny.

Judges in our tradition are limited to finding and applying the existing law. They may not make new law. The most influential treatise in the common law tradition, Blackstone’s Commentaries on the Laws of England (1765), explains this principle as follows.

In all tyrannical governments, the supreme magistracy, or the right of both making and of enforcing the laws, is vested in one and the same man, or one and the same body of men; and wherever these two powers are united together, there can be no public liberty. The magistrate may enact tyrannical laws, and execute them in a tyrannical manner, since he is possessed, in quality of dispenser of justice, with all the power which he, as legislator, thinks proper to give himself.

Furthermore, Blackstone explains that no judge may vary his judgment from the known law “according to his private sentiments.” Judges are sworn “to determine [cases], not according to their own private judgment, but according to the known laws and customs of the land.” Judges are “not delegated to pronounce a new law, but to maintain and expound the old one.”

The five justices of the Obergefell v. Hodges majority violate the separation of powers. As Roberts and Scalia explain, they act as a super-legislature to manufacture a new fundamental right to same-sex marriage. They use this right as a pretext for enforcing their private sentiments.

Part IV: Conclusion

All three dissenting opinions in Obergefell v. Hodges close with warnings. Chief Justice Roberts makes three. First, Roberts warns that Obergefell v. Hodges will require recognition of a fundamental right to plural marriage. Second, Roberts warns of fallout from Obergefell v. Hodges’s repudiation of democratic processes. Heavy-handed judicial intervention provokes rather than resolves conflict. Third, Roberts warns that Obergefell v. Hodges poses a serious threat to religious liberty. “Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage. There is little doubt that these and similar questions will soon be before this Court.” The outlook for religious freedom is grim. Roberts writes that “people of faith can take no comfort in the treatment they received from the majority today.”

Alito warns that “all Americans should worry about what the Obergefell v. Hodges majority’s claim of power portends.” “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 [of justices] will be able to do is their own sense of what those with political power and cultural influence are willing to tolerate.”

Scalia warns that Obergefell v. Hodges’s blunt assertion of judicial supremacy will ultimately render the Supreme Court impotent. Americans will neither tolerate nor obey a Supreme Court that denies our right to govern ourselves. If the Supreme Court does not respect the Constitution, the people will not respect the Supreme Court’s rulings. Scalia’s warnings are already coming true, as shown by the case of Rowan County Clerk Kim Davis.

The most urgent warning, however, comes from the history of the Western legal tradition. The book of this history is open to all. We need only consult it to learn that legal systems must fulfill three requirements to uphold the rule of law. First, political rulers must respect the autonomy of law. Second, the laws must reflect the consent of the governed. Third, the laws must separate the power to make law from the power to enforce law. Legal systems that fulfill these requirements succeed in upholding the rule of law. Legal systems that violate these requirements, however, are inevitably overthrown.

The Constitution fulfills all these requiremeoct 31 the fortune cookie 9nts. The Obergefell v. Hodges majority rejects them all. If We the People fail to restore these requirements, our nation will suffer the melancholy judgment of history. Tyrannical laws can oppress the spirit of liberty for a season, but liberty always prevails in the end. Our legal system too will be supplanted by legal revolution.

The Constitution makes the Supreme Court. The Supreme Court does not make the Constitution. The Center for Law and Liberty at Houston Baptist University is dedicated to preserving liberty through the rule of law. Join us if you love liberty.

 

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ABOUT THE AUTHOR:

oct 31 the fortune cookie 10John O. Tyler, Jr., JD, PhD, is board certified in Civil Trial Law and Personal Injury Trial Law by the Texas Board of Legal Specialization. Dr. Tyler’s interests focus on the intersection of law and government with an emphasis on the United States Constitution. As associate professor of Law at HBU, his teaching emphasizes the dynamic conflict between the political, moral, and historical dimensions of law that formed the Western legal tradition. Dr. Tyler is deeply involved with the pre-law program at HBU as well as HBU’s Center for Law and Liberty.

ABOUT THE CENTER FOR LAW AND LIBERTY:

oct 31 the fortune cookie 11The Center for Law and Liberty is an initiative of HBU’s School of Humanities. The Center is dedicated to the preservation and promotion of American Founding principles, limited government, and liberty. The organization is staffed by a select group of professors from the fields of Government, History, and Law who share a commitment to the values on which our nation was founded.

 

 

 

 

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