Articles for July 2013

The Limits of Courts to shape the Constitution: DOMA

by Adriana

July 15th, 2013

Welcome to the Bromund Law Group’s law blog. Here we will be sharing the thoughts and analysis of Bromund Law Group attorneys on legal issues of the day and significant concepts relating to the law in the United States. We have four lawyers in this firm now and each one of us has our own unique perspective on the law. In a Republic, that is entirely to be expected, and I hope the reading public will join in on this discussion to make our blog a forum for active citizenship. While we are all advocates for our clients first and foremost, we are also active citizens committed to making ours a ‘more perfect union’.

The first topic for discussion is the Defense of Marriage Act and the recent Supreme Court decision declaring that Congress lacked the constitutional authority to pass this law. The Supreme Court’s action, as noted by Justice Scalia in his dissent, moves the power of judicial review into the arena of cases where there is no controversy between the parties to the lawsuit. (In the DOMA case before the Supreme Court, both parties to the lawsuit agreed that DOMA was unconstitutional.) This is dangerous as it makes the Supreme Court into a ‘super-legislature’ able to declare laws unconstitutional even if there is no controversy between litigants.

Why does this matter? We don’t elect the justices to the Supreme Court and we do not have any means of limiting their power to govern us if their authority sweeps out to embrace any question of constitutional significance. For this reason, the Constitution explicitly limits the federal judicial power to adjudicating cases and controversies, not reviewing all laws and regulations. If this extension becomes accepted, we lose the ability to govern ourselves and instead hand over our sovereignty to the bare majority of judges appointed for lifetime terms.

Please note that this opinion does not address the subject matter of DOMA. I am no homophobe, nor do I have hate in my heart for anyone’s consensual expression of love between adults, so please do not jump to that conclusion. My view is that of a lawyer, focusing on how the means of resolving important questions affects our ability to be self-governing. In that sense, the Supreme Court did violence to the Constitution in this decision, and thereby harmed our republic’s ability to be ‘of the people, by the people, and for the people.

Here’s an excerpt from his dissent: In the majority’s telling, this story is black-and-white: Hate your neighbor or come along with us. The truth is more complicated. It is hard to admit that one’s political opponents are not monsters, especially in a struggle like this one, and the challenge in the end proves more than today’s Court can handle. Too bad. A reminder that disagreement over something so fundamental as marriage can still be politically legitimate would have been a fit task for what in earlier times was called the judicial temperament. We might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution. We might have let the People decide. But that the majority will not do. Some will rejoice in today’s decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better. I dissent.

For me, I entirely agree with Abraham Lincoln, who (in reference to the horribly evil Dred Scott decision) said, “I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by other departments of the government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.”

And, in case you were curious, I think that the word ‘marriage’ ought to be one that has a social meaning only. I believe that the legal status conveying benefits of inheritance, tax status, and community estates, ought to be ‘legal union’ or ‘domestic corporation’ and that such a term ought to be open to any combination of consenting adults. In the 21st century, I don’t think we have a society of such moral homogeneity that it is appropriate to impose upon all citizens the views of the modern Christian faith (one man/one woman, unified for life until one or the other of them decised to terminate the relationship at their discretion and with the payment of fees to a state court).

Since ‘traditional marriage’, as opponents of same-sex unions promote, is, in fact, the law nowhere in the United States. Traditional marriage is one man-one woman-till-death-do-you-part. Such a standard is the law nowhere.

In a nation with my views, ‘marriage’ would become a term like ‘dating’, ‘in a relationship’, ‘friendship’, or (for some) ‘brother’ or ‘sister’ insofar as it is up to the people using the term to assert its application to their relationship confidently and NOONE has the right to naysay them defining their relationship for them. The nations would only have a right to give benefits, or not, for relationships that the parties elect to submit to the requirements of the state, namely that of licensure and a mandated process for dissolution. I think such a change would be a LOT healthier for our republic.

But we won’t be going that way, even if it happened that the majority of people happened to decide my ideas of how to found the legal instutions conveying benefits for social relationships were adopted. Instead, as a result of our continued shrinking sphere of legislative responsibility for Congress and the states, we will need to await the Supreme Court’s decision to enact this policy change (or any other) according to their sense of what the Constitution means at that time, to them. That doesn’t strike me as self-government.

My worry is that every time the Supreme Court moves the society forward (Brown v. Board, Roe v. Wade, DOMA, etc.) it makes our political branches less responsible for progress and our Republic less self-governing. Congress used to be the forum for our civil liberties expansion (Alien and Sedition Act debate 1797-1801, Civil Rights Act of 1864, the abolition of slavery, the extension of the franchise to women, Prohibition and its Repeal) but as the Court has extended its reach since the 1930s, Congress has become ever-pettier and our civics ever-more impoverished. Lawyers alone cannot govern a nation.

When we try to, we occassionally get it horrifically wrong. Don’t think so? Let me refer you to a few of the Supreme Court’s Greatest Failures:

Plessy v. Ferguson (1857) (Plessy v. Ferguson discussion by PBS) wherein the Supreme Court declared that, “Negroes have no rights, which the white man is bound to respect.” It didn’t cause the Civil War but it did make certain that, even after 600,000 people died to free a race of people from the bonds of slavery, the law would continue the evil lie that ‘all men are created equal’ didn’t include people whose physiognomy included enough melanin to make them appear darker than a person whose forebears came from the North of the North African coast of the Mediterranean Sea. (I have serious biological basis for what people socially identify as a race, so if my phrasing is awkward its because I don’t happen to believe the terms ‘White’, ‘Black’, ‘African American’, etc. are of any useful descriptive quality.)

Muller v. Oregon (1908) wherein the Supreme Court decided it would authorize the government to regulate the working hours of women on the basis of racial welfare. “The physical wellbeing of women becomes an object of public interest and care in order to preserve the strength of the race.”

Kelo v. New London (2005) wherein the Supreme Court decided that the authority of the government to seize private property for public use, paying the owner the current market value of the property, could be employed when the ‘public use’ consisted of selling the land to a private entity for commercial development that would generate more tax revenue for the state. This extension of the ‘takings’ power of the government makes the power so great as to render private property rights irrelevant in the face of a wealthy party who extends a bribe to the public purse to consume someone else’s land. Before this, a private entity had to engage in a voluntary exchange with another private entity to acquire title to land, thereby leaving each of us secure on our own land unless some public need (road, aqueduct, etc.) was apparent. Now, your rights are only secure until someone bribes the government to condemn your land and transfer it to their use.

Lone Wolf v. Hitchcock (1903) wherein the Supreme Court decided the “plenary power” of the United States Congress gave it authority to unilaterally abrogate treaty obligations between the United States and Native American tribes. The decision marked a departure from the holdings of Cherokee Nation v. Georgia, 30 U.S. 1 (1831), and Worcester v. Georgia, 31 U.S. 515 (1832). Given how completely horrible our nation’s history is at fulfilling the treaties even before abrogation, it is shocking to see the Supreme Court go the ‘extra mile’ to make a ‘dependent domestic nation’ into a legal non-entity for no apparent reason.

The Supreme Court writes well, most of the time. It provides a final resolution for lawsuits. These two attributes are useful for our Republic and deserve to be honored and respected.

But it is no fortress of righteousness or bastion for the protection of liberty or self-government. Its actions over the last century have consistently reduced the scope and responsibility of our representative branches of government; and we should arrest that development if we hope to retain our rights under the Constitution our forebears drafted and ratified.