Proposition 8 and the living Constitution

In a 2-1 vote, a panel of judges from the Ninth U.S. Circuit Court of Appeals struck down California’s Proposition 8 and its prohibition of gay marriage. Judge Stephen Reinhardt, writing the ruling opinion, argued that not allowing gay marriage lessens the status of gay persons, reclassifies their union as inferior, stigmatizes them and is a form of government-sponsored discrimination.

As a remedy, the judges held that under the equal-protection clause of the 14th Amendment, the government has a constitutional duty to allow gay marriage. The equal-protection clause is a general restraint to prevent the abridgement of rights. Under all three levels of scrutiny to which the equal protection clause has been applied — strict, intermediate and rational basis — traditional marriage clearly constitutes a compelling government interest. It is nothing less than the bedrock of civil society. Yet the ruling turns a blind eye to this in order to promote an alternatively preferred policy. The equal-protection clause has simply been commandeered as a malleable instrument to further a political agenda. What the judges should have done is refer this constitutionally silent issue back to lawmakers and the general public. Instead, they disavowed traditional marriage.

To witness unelected, unaccountable judges overturn the will of the people in the service of their desire to create a new right is a kind of tyranny that threatens to destroy liberty by degrees. If you believe in a so-called living Constitution, where are the limits of interpretation? Where does judicial activism and the consequent diminishment of a representative process end? The answer is that it doesn’t. In the end, you subscribe to a view that has no real boundaries and simply shadows the moral relativism of popular culture. The Constitution becomes a document from which an unending series of unenumerated rights lie fallow until such time as we want them. Based on loose constructionism, the judiciary has an unlimited role and the Constitution can be stretched to transparency. The concept of unbounded interpretation is precisely what is unconstitutional.

Former circuit judge Robert Bork once observed, when judges depart from an original understanding of the Constitution, “they lack any guidance other than their own attempts at moral philosophy, a task for which they have not even minimal skills.”

The Constitution is primarily a guarantor of negative liberties. It tells us what the federal and state governments are not allowed to do. To our horror, judges now depart from the Constitution in order to recast the culture and values of the nation. They are gradually turning the Constitution into a charter of positive liberties through the invention of new rights. And all of this is done without the consent of the governed.