The Myth of Constitutional Constraints

A column penned by Ann Woolner has in a two words that set my teeth on edge. Those words are “constitutional constraints.” Speaking of being constrained by the constitution conjures up the image of the constitution as an actor; an actor that sets limits. But that’s not how the American judicial system has evolved. The only actors are the judges, and, as one famously said “the constitution is what the judges say it is.” For some judges (I don’t know how many but they appear in the news almost daily) the constitution is a weapon that allows they to impose their concepts of fairness and justice on the rest of us.

Need an example? A hundred years ago, it was illegal in most venues to commit homosexual acts. Today, the Supreme court has struck down laws against those acts and, taking a giant step, many judges have decreed to those same homosexuals can marry. Same constitution; different judges.

Attempting to ridicule concerns that the courts would allow the imposition of Sharia law in the US, Woolner uses the example of the courts enforcement of the ban of polygamy.

Besides, as it is, no religion can trump American law in U.S. courts when the two fundamentally conflict. The Supreme Court said so when it ruled that Mormons couldn’t violate a federal ban on polygamy.

In view of the court rulings on same-sex marriage, I have never understood how the courts can claim that laws against homosexual marriage are unconstitutional, but laws against polygamous marriage are constitutional. There is no specific language in the constitution that limits the partners in marriage to two.  

 Forget about the tortured justification for striking down bans on homosexual marriage. The simple reason behind all these rulings is the fact that many judges have friends and relatives who are homosexual and they have determined that if two men or women who are gay love each other they cannot be prevented by law from getting married because it abridges their freedom. So, why can’t three or more?  Simple, they don't know many Mormons and most Mormons are not agitated about polygamous marriage.  How's that for a constitutional principle? 

We are told that a “living constitution” must adjust to the evolving standards of the community and that judges are in a position to understand the evolution of these standards. But that is apparently not the case. If it were so, laws will be changed if the people approve and judicial fiat will be unnecessary. Yet when allowed to vote on the matter, a majority of Americans oppose homosexual marriage and I am certain that the same is true of polygamy.

Liberals like Ann Woolner like to use the excuse that the constitution protects us against radical changes in our laws or culture and smears those who voice those concerns as engaging in “irresponsible fear-mongering.” When it comes time to impose her version of law and justice on the American people by judicial fiat, she will, like Lucy in the Peanuts comic strip, jerk the constitutional ball away from us and we will land, like Charlie Brown, on our collective asses as she laughs and tells us what fools we were.