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Mark Alexander / Feb. 27, 2004

The Constitution as Dictionary?

In the wake of a relentless homosexual assault on the basic building block of our society, in answer to the sordid shenanigans of the homosexual lobby in Massachusetts, and in response to the San Francisco mayor’s decision to issue homosexual marriage licenses in defiance of state law, President George W. Bush has officially endorsed a constitutional amendment to protect marriage as it was instituted by God and nature – and common sense. But to what end?

It has always has been The Federalist’s belief that a constitutional amendment should be a last resort – a measure taken only in response to the most serious of circumstances. This crisis, however, is not confined to the definition of marriage. Rather, it is the Left-judicial assault on our national and state constitutions – an assault that has marched so far into the heart of our republic that the mere determination of what constitutes an institution as fundamental as “marriage” must now be constitutionally defined.

As President Bush noted in his comments on the proposed amendment, “After more than two centuries of American jurisprudence, and millennia of human experience, a few judges and local authorities are presuming to change the most fundamental institution of civilization. Their actions have created confusion on an issue that requires clarity.”

Case in point: The Defense of Marriage Act, overwhelmingly passed into law in 1996 to define marriage as between one man and one woman, is far from a guarantee. Recent actions by judicial activists in support of homosexual agendas bear this out all too clearly. In fact, under the current barrage of judicial activism, nothing prevents the courts from declaring the Defense of Marriage Act “unconstitutional,” or simply re-interpreting it as it stands. As President Bush emphasized, “[T]here is no assurance that the Defense of Marriage Act will not, itself, be struck down by activist courts. In that event, every state would be forced to recognize any relationship that judges in Boston or officials in San Francisco choose to call a marriage.”

Significantly, the President stopped short of endorsing the specific language of the amendment proposed by Rep. Marilyn Musgrave in the House and Sen. Wayne Allard in the Senate, qualifying his endorsement to leave “state legislatures free to make their own choices in defining legal arrangements other than marriage [for domestic partners, including homosexuals].” Of course, as President Bush acknowledged, “The Constitution says that full faith and credit shall be given in each state to the public acts and records and judicial proceedings of every other state.”

But why reserve the issue of same-sex civil unions to the states? If judicial activist courts can simply decree that all states must recognize the same-sex “marriage” of any other state, then these same activist courts can also require each state to acknowledge any other state’s licensing of homosexual “civil unions.” What, then, is the purpose of this amendment other than to limit the legal definition of the word “marriage” solely to recognize a union between a man and woman? What’s in a word?

The overarching issue is that the system of government envisioned by our Founders and defended in The Federalist Papers – a government “to … establish Justice,” a republic where “we, the people” would elect representatives who were to be held accountable by an independent judiciary – has devolved into little more than a system of government by judicial decree. Alas, our Founders expected judges to honor our constitution; to be constitutional constructionists bound by the letter of that venerable document; to be above the whims of democratic elections that would, inevitably, politicize the courts.

But once an activist judge begins, in the words of that stalwart old Sen. Sam Ervin, to “interpret the Constitution to mean what it would have said if he, instead of the Founding Fathers, had written it,” our Constitution is, in effect, rendered null and void.

No sooner had judicial activists begun “interpreting” the constitution such that it comported with their political agenda, than the courts became political instruments. Elected officials were thereafter chosen based upon who they’d appoint to the courts, knowing that those appointments would reflect a particular political agenda.

Thomas Jefferson warned of the potential tyranny of the “despotic branch”: “Over the Judiciary department, the Constitution [has] deprived [the people] of their control. … The original error [was in] establishing a judiciary independent of the nation, and which, from the citadel of the law, can turn its guns on those they were meant to defend, and control and fashion their proceedings to its own will. … The opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch. … It is a misnomer to call a government republican in which a branch of the supreme power [the judiciary] is independent of the nation. … It has long, however, been my opinion, and I have never shrunk from its expression…that the germ of dissolution of our federal government is in the constitution of the federal Judiciary; working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped.”

Indeed, virtually all has been usurped. Jefferson, in his great wisdom, knew that, human nature being what it is, judges would eventually abandon the plain language of the Constitution.

In the end, this proposed marriage amendment does little more than bandage a lesion on a body consumed with cancer. In addition, it lends a false sense of security. If the issue – as President Bush presented in no uncertain terms – is the imminent threat of judicial activism (and indeed it is), then the only constitutional amendment we should be considering is one that addresses judicial activism. (The Federalist is currently discussing the scope and language of such an amendment with conservative members of Congress – more on that next week.)

As for the lawlessness of these from-the-bench legislators and the elected representatives who are tasked with keeping them in check, they all disregard the Constitution they’ve sworn to uphold. We would ask the same question that George Washington once asked: “…[W]here is the security for property, for reputation, for life, if the sense of religious obligation deserts the oaths…?”

And… “God save the United States and this Honorable Court.” –Proclamation opening every Supreme Court proceeding.

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