Should the SCOTUS be tamed? DOMA Decision Opens Debate About the Supreme Court, Not About Marriage

http://www.lc.org/ ^ | July 10, 2013 | Liberty Counsel

[GodAndCountryFirst]

The 5-4 opinion by the Supreme Court on the federal Defense of Marriage Act (DOMA) raises questions about the Court’s authority. The debate should focus on the role of the Supreme Court within the Republic and its duty to interpret the Constitution. The debate should not be over marriage.

In the DOMA case, the five-member majority ignored long-accepted Equal Protection law. The decision is neither grounded in the constitutional text nor in prior precedent. It is contrary to the Western legal tradition, natural law, and the created order. Marriage was not invented by religion or civil authorities and predates both.

[EternalVigilance]

It is an authority the Court arrogated to itself in Marbury v Madison.

The judges must interpret the Constitution in order to keep their own oaths. As must every officer in every branch. THAT is what Marbury actually says.

Marbury was NOT a judicial supremacist opinion, it was a constitutional supremacist opinion.

The modern lies about this very thing are destroying this free republic more than almost anything else.

[OneWingedShark]

Nothing in there contradicts the ORIGINAL intent of anything in the Bill of rights. You also are wrong if you believe America was not founded upon the bedrock principles of the Holy Word of God. Th truth of that goes back as far as the Mayflower Compact.

Reread what I wrote; I said nothing about original intent.

[DoughtyOne]

My intent was to express what I thought to be a terrible decision process on the part of Chief Justice Roberts. It was quite convoluted, I thought. I believe you have come up with two laws whose outcomes were worse than the ObamaCare ruling will cause, although it will certainly be bad.

You touched on some good points there. You’re obviously more qualified than I am to discuss them, so I’ll let your comments stand. I agree with them as far as that goes.

[supercat]

Say what? The Constitution is written in plain English, and thus needs *no* 'interpretation'.

No matter how well-written constitutions, statutes, or other laws or rules may be, situations are bound to arise which pose ambiguities. If laws are written sloppily (as is typical), such situations may happen frequently. It is right and proper for a court to use its own judgment to "fill in the gaps" in cases where bona fide ambiguities exist, provided that the court never loses sight of the fact that its own decisions are only applicable in cases where existing laws are genuinely ambiguous.

[supercat]

You se there's this thing called precedent *spit*, which ostensibly is to function just as you suggest.

I think the one of the most fundamental problems is that the Court fails to make recognize the distinction between two related questions:

1. Whether some particular action is legitimate
2. Whether any harm someone suffers as a result of some particular action justifies a remedy

The court, when pressed, occasionally recognizes that not every illegitimate action which harms someone justifies a remedy. It seems very loath to do so, but occasionally in cases where someone is clearly harmed by some patently-illegitimate action, and yet no reasonable remedy is be possible, it will recognize that not every illegitimate action has a remedy. Unfortunately, the court fails to recognize that this also implies that a finding that an action does not justify a remedy does not imply that the action was legitimate.

I would posit that a recognition of the above, along with a recognition that an oath to uphold the Constitution requires that one must a good faith effort to act legitimately, would do a lot to check the incremental decay of constitutional governance. As it is, courts often feel unwilling to decide that an action was illegitimate in cases where such a finding would seem to compel an impracticable remedy; a failure of the court to condemn the action is thus taken as an endorsement of its legitimacy. What should happen in such cases would be for courts to expressly denounce the actions in question, and acknowledge that denying the relief would be unjust, but apologetically recognize that the relief would be impossible to grant without causing a greater injustice.