by Michael Connelly, Constitutional Attorney

In the past several weeks the various branches of the Federal government have virtually destroyed the very fabric of our Constitutional Republic. Obama has continued with his efforts to dismantle our economy and the Constitution with more illegal and unconstitutional Federal agency regulations and with the promise of more Executive orders aimed at gutting the Bill of Rights.

The Republican controlled Congress did its part by passing mostly secret legislation that apparently gives Obama the right to enter into International treaties and send them to Congress for a straight up or down majority vote, with no amendments allowed. This action totally ignores the provisions of Article II, Section 2 of the Constitution that requires that all treaties entered into by the President be ratified by a two thirds majority of the United States Senate.

Now we have two decisions by the Supreme Court that have trashed the Constitution by once again giving rubber stamp approval to the entirely unconstitutional Obamacare legislation by essentially rewriting the law. Then it ignores the Tenth Amendment to the Constitution that states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

The fact is that the word marriage does not appear anywhere in the Constitution and certainly not in the Fourteenth Amendment. The laws concerning marriage are therefore entirely in the hands of the states. Yet, five unelected SCOTUS justices have placed their own political agenda above the Constitution and created a new Federal law mandating the acceptance of gay marriage by all 50 states.


There is simply no other way to say it. 

The Supreme Court’s decision redefining marriage to include couples of the same sex is wholly illegitimate and unlawful.  A nullity.  Worthy only to be disobeyed.

Anyone who says otherwise -- that the rule of law requires recognition of same-sex marriage -- is committing a fraud.  And any State official -- like Governor Robert Bentley of Alabama -- who says that his oath of office requires unconditional obedience to the Supreme Court’s mandate to issue same-sex couples licenses to marry is mistaking his oath to the Constitution as if it were an oath of absolute obedience to five justices who happen to be sitting on the nation’s highest court.

As Chief Justice Roberts in dissent has described the action taken today:

“Five lawyers have closed debate and enacted their own vision of marriage as a matter of constitutional law.  Stealing this issue from the people ....”

And just who are these lawyers?  Justice Scalia reminds us that they are all educated at either Harvard or Yale, from the east- and west- coasts, not from the vast middle of the country, and not a single one an evangelical Christian or a Protestant, and then observes:

“The strikingly unrepresentative character of the body voting on today’s upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage.”

Indeed, from the outset of his bare majority decision, Justice Kennedy did not even act like a judge.  Rather, he wrote as if he were an existentialist philosopher seeking the meaning of life, as if the “liberty” protected in the Constitution was a personal quest “to define and express [one’s personal] identity.” 

But the Constitution is not some philosophical work written by Jean Paul Sartre.  Rather, it is a political and legal document designed by America’s founders to secure the unchanging God-given rights to life, liberty, and property which are deeply rooted in the 18th century soil of the nation.  Justice Kennedy showed no regard for these fixed principles, opting for an evolutionary approach to law -- asserting that the existential definition of marriage changes with changing times.

However, the very purpose of our Constitution is, as Chief Justice John Marshall wrote in Marbury v. Madison, to make “permanent” those principles that the people desired.  And, so that those principles would not be “mistaken or forgotten,” the people committed them to writing.  Thus, Marshall wrote “it is the province and duty for the courts to say what the law is,” not to make it up as we go along.

As today’s dissenting Chief Justice observed, “[t]hose who founded our country would not recognize the majority’s conception of the judicial role”:

“They after all risked their lives and fortunes for the precious right to govern themselves.  They would have never imagined yielding that right on a social policy to unaccountable and unelected judges.  And they certainly would not have been satisfied by a system of empowering judges to override policy judgments so long as they do so after ‘a quite extensive discussion.’”

And, as the capstone of his dissent, the Chief Justice concluded:  “the Constitution.  It had nothing to do with it.”  In those nine simple words, Chief Justice Roberts explained why this decision of the Court is not law.  If the Constitution had nothing to do with it, the Court had no jurisdiction to issue it.  It is, therefore, a nullity. 


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