Supreme Court Justice Antonin Scalia’s dissent in Thursday’s 5/4 Obamacare decision. Its a collection of sound reasoning, the kind that never enters the minds of Progressives.
No. 1: SCOTUS Is a ‘Threat’
“I write separately to call attention to this Court’s threat to American democracy.”
No. 2: Our New Rulers
“[I]t is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree 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. The opinion in these cases is the furthest extension in fact—and the furthest extension one can even imagine—of the Court’s claimed power to create ‘liberties’ that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, 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.”
No. 3: Naked Claim to Power
“This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ ‘reasoned judgment.’ A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”
No. 4: ‘Pretentious’ and ‘Egotistic’
“The opinion is couched in a style that is as pretentious as its content is egotistic. It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the Court to do so.”
No. 5: Five Justices Think They Know All
“The five Justices who compose today’s majority are entirely comfortable concluding that every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’ permitting of same-sex marriages in 2003. They have discovered in the Fourteenth Amendment a ‘fundamental right’ overlooked by every person alive at the time of ratification, and almost everyone else in the time since. They see what lesser legal minds—minds like Thomas Cooley, John Marshall Harlan, Oliver Wendell Holmes, Jr., Learned Hand, Louis Brandeis, William Howard Taft, Benjamin Cardozo, Hugo Black, Felix Frankfurter, Robert Jackson, and Henry Friendly—could not. They are certain that the People ratified the Fourteenth Amendment to bestow on them the power to remove questions from the democratic process when that is called for by their ‘reasoned judgment.’ These Justices know that limiting marriage to one man and one woman is contrary to reason; they know that an institution as old as government itself, and accepted by every nation in history until 15 years ago, cannot possibly be supported by anything other than ignorance or bigotry. And they are willing to say that any citizen who does not agree with that, who adheres to what was, until 15 years ago, the unanimous judgment of all generations and all societies, stands against the Constitution.”
No. 6: Court’s Reputation Diminished
“The stuff contained in today’s opinion has to diminish this Court’s reputation for clear thinking and sober analysis.”
No. 7: ‘Profoundly Incoherent’
“[T]he opinion’s showy profundities are often profoundly incoherent. ‘The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.’ (Really? Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie. Expression, sure enough, is a freedom, but anyone in a long-lasting marriage will attest that that happy state constricts, rather than expands, what one can prudently say.)
“Rights, we are told, can ‘rise . . . from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.’
“And we are told that, ‘[i]n any particular case,’ either the Equal Protection or Due Process Clause ‘may be thought to capture the essence of [a] right in a more accurate and comprehensive way,’ than the other, ‘even as the two Clauses may converge in the identification and definition of the right.’ (What say? What possible ‘essence’ does substantive due process ‘capture’ in an ‘accurate and comprehensive way’? It stands for nothing whatever, except those freedoms and entitlements that this Court really likes. And the Equal Protection Clause, as employed today, identifies nothing except a difference in treatment that this Court really dislikes. Hardly a distillation of essence. If the opinion is correct that the two clauses ‘converge in the identification and definition of [a] right,’ that is only because the majority’s likes and dislikes are predictably compatible.)”
No. 8: Supreme Court ‘Ends’ Public Debate
“When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. … Since there is no doubt whatever that the People never decided to prohibit the limitation of marriage to opposite-sex couples, the public debate over same-sex marriage must be allowed to continue.
“But the Court ends this debate, in an opinion lacking even a thin veneer of law.”
No. 9: A ‘Judge-Empowering’ Decision
“Buried beneath the mummeries and straining-to-be-memorable passages of the opinion is a candid and startling assertion: No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its ‘reasoned judgment,’ thinks the Fourteenth Amendment ought to protect. That is so because ‘[t]he generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions . . . . ‘ One would think that sentence would continue: ‘. . . and therefore they provided for a means by which the People could amend the Constitution,’ or perhaps ‘. . . and therefore they left the creation of additional liberties, such as the freedom to marry someone of the same sex, to the People, through the never-ending process of legislation.’ But no. What logically follows, in the majority’s judge-empowering estimation, is: ‘and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.’ The ‘we,’ needless to say, is the nine of us.”
No. 10: Violating Principles
“[T]o 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 principle even more fundamental than no taxation without representation: no social transformation without representation.”
No. 11: Overthrowing the Government
“[W]hat really astounds is the hubris reflected in today’s judicial Putsch.”
No. 12: ‘One Step Closer …’
“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.”
I borrowed the above from The Blaze.
7 thoughts on “Why no one who supports Liberty should condone SCOTUS finding on same sex marriage.”
“no social transformation without representation.”
I suspect Thomas Paine would have smiled at this even as he’d shake his head in sadness that Scalia’s words won’t stir men as his did because there are so few men.
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We are Conservatives. Our motto is: “no social transformation” full stop.
The Founders and Framers of the Constitution explicitly rejected the ideas of “social transformation” or “social progress” or “progressivism” or “socialism” or “communism”.
No-one who believes in “social progress” or any of the above has any rights under the Constitution.
A magnificent dissent, and in fact no less than a call to arms.
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If “Social Transformers” have rights under art 3 sec 3: we have rights under amend. 2.
The question is: do we have the courage to exercise our rights.
Just like Roe v. Wade. This battle just exploded into a US national issue – which means it’s not going away soon. So if the rainbow crowd thinks that the SCOTUS has settled the question, they should think again:
“Mmm, so long as we can force a few bakers to make cakes for lesbians, and disgrace some poster boy priests into disgrace for sticking to their religious rights.” (…Just so that a minority of a 1% of the total population can have a play at marriage and family.)
They really have no idea. As soon as this starts practically to impinge on the rights of the majority – then it’s gonna explode.
Btw, the Governor of Texas and Missouri Lutheran Synod have already repudiated the ruling.
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Texas is issuing marriage licences. Abbott did nothing. There has been no “Stand at the Courthouse Door” and the State Guard has not been mobilised.
Much more importantly, the US Council of Catholic Bishops will not close all Catholic adoption agencies, as they did in the UK, and probably schools and hospitals too.
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