Till Death Do Us Part (David Warren on how the courts will destroy Canada)

The struggle for "gay marriage" is over in Canada. It was over before it started; and while I weighed into the business of homosexual "rights" in December, from another angle — getting an unpleasant duty over with before Christmas — I didn't have the stomach for a secular political battle that was unwinnable. For in my assessment, no argument, no matter how unanswerable, could have made the slightest difference in a "debate" that never occurred.

The decision to allow persons other than "a man and a woman" to marry was supported by the usual prolix, amateur-hour riff of a judgment on "equality rights", in this case from the Court of Appeal for Ontario — unworthy of rebuttal, for it simply ignored opposing arguments, and any inconvenient implications in law. It did not even bother to distinguish corporate from individual persons, in rewriting the common law. Yet for all its huge consequences to our lives and morals, it was made in the way all important decisions are now made in Canada.

A provincial court is asked to rule on a test case, that has been organized by the left-liberal legal establishment to perfectly suit its needs. This court then takes the bait, overturning centuries of organic judicial and legislative development, in a single stroke. The federal government — which is to say, the Liberal Party of Canada — pretends it will appeal this, while looking at the polls. If the coast is clear they drop the idea, and announce a surrender immediately. If it isn't, they proceed to the Supreme Court of Canada with an appeal that is bound to lose — given a high bench stacked with left-liberal law-school mediocrities — thus taking the rest of the wind out of the sails of any conservative opposition. Meanwhile they themselves, and the progressive media, beat a continuous drum roll over dissident voices, declaring the latest stunt to be an "inevitable" part of the "evolution of society", and slandering all opponents as scary dark.

We now have poll results to show that Canadians back "gay marriage" by a fair margin in most regions. (There was a radical shift over the past few years, from massive opposition everywhere.) Look back over the polls, and you find a series of dubiously-phrased poll questions. The usual trick is to ask the key, headline-getting question right after an invisible, no-headline one. In this case: "Do you think homosexuals should have equal rights with heterosexuals in Canada?" The respondent is hard-pressed to answer "no" to that, and then feels he will be contradicting himself if he says "no" to homosexual marriage a second later. In this jury-rigging way, an illusion is created of democracy at work. Whereas no one ever spent more than a moment thinking about the issue, as he would feel bound to do if there were a proper election or referendum.

This is the "glib" in my portmanteau word, "gliberalism": results are obtained by keeping public debate on the airhead level. Laws and the public morals they help sustain, built over centuries of painful trial and error, can be subverted and inverted in a trice of public inattention.

The whole idea of a responsible government, is that it must answer to the public will — something deeper than the latest poll results. The courts in such a system do not make law, but apply it. For even a court creating a precedent must found that precedent in principles previously established. Parliament alone is the legitimate source of legal innovations, for that is where a governing party will stand or fall on what it does, and where future governing parties may correct a disastrous mistake.

Quite terrible corruption follows from the loss of that clear principle — when governments decide they haven't the guts to make hard decisions, and leave them all to be made by the courts.

Still, life goes on, for very few single, irreversible decisions have the power to demolish the political order. They only do incidental cumulative damage. Eventually, however, weakened by one hit after another, the political order does come down

I recall when I first read the ERA, the text of the amendment itself provided a time-limit for ratification. Do I remember correctly?

The Illinois version address the time limit. Read for yourself! (It's in bold print)

Full Text of HJRCA0001 HOUSE JOINT RESOLUTION CONSTITUTIONAL AMENDMENT

WHEREAS, The Ninety-second Congress of the United States of America, at its Second Session, in both houses, by a constitutional majority of two-thirds, adopted the following proposition to amend the Constitution of the United States of America: "JOINT RESOLUTION RESOLVED BY THE HOUSE OF REPRESENTATIVES AND SENATE OF THE UNITED STATES OF AMERICA IN CONGRESS ASSEMBLED (TWO-THIRDS OF EACH HOUSE CONCURRING THEREIN),

That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as a part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years from the date of its submission by the Congress:

"ARTICLE ______ Section 1. Equality of rights under law shall not be denied or abridged by the United States or any State on account of sex.

Section 2. The Congress shall have the power to enforce by appropriate legislation the provisions of this article.

Section 3. This Amendment shall take effect two years after the date of ratification."";

and WHEREAS, A Joint Resolution is a resolution adopted by both houses of the General Assembly and does not require the signature of the Governor; a Joint Resolution is sufficient for Illinois' ratification of an amendment to the United States Constitution;

and WHEREAS, The United States Congress has recently adopted the 27th Amendment to the Constitution of the United States, -2- LRB093 02211 MKM 02219 e the so-called Madison Amendment, relating to Compensation of Members of Congress; this amendment was proposed 203 years earlier by our First Congress and only recently ratified by three-fourths of the States; the United States Archivist certified the 27th Amendment on May 18, 1992;

and WHEREAS, The founders of our nation, James Madison included, did not favor further restrictions to Article V of the Constitution of the United States, the amending procedure; the United States Constitution is harder to amend than any other constitution in history;

and WHEREAS, The restricting time limit for the Equal Rights Amendment ratification is in the resolving clause and is not a part of the amendment proposed by Congress and already ratified by 35 states;

and WHEREAS, Having passed a time extension for the Equal Rights Amendment on October 20, 1978, Congress has demonstrated that a time limit in a resolving clause can disregarded if it is not a part of the proposed amendment;

and WHEREAS, The United States Supreme Court in Coleman v. Miller, 307 U.S. 433, at 456 (1939), recognized that Congress is in a unique position to judge the tenor of the nation, to be aware of the political, social, and economic factors affecting the nation, and to be aware of the importance to the nation of the proposed amendment;

and WHEREAS, If an amendment to the Constitution of the United States has been proposed by two-thirds of both houses of Congress and ratified by three-fourths of the state legislatures, it is for Congress under the principles of Coleman v. Miller to determine the validity of the state ratifications occurring after a time limit in the resolving clause, but not in the amendment itself;

and -3- LRB093 02211 MKM 02219 e continues to be timely in the United States and worldwide, and a number of other nations have achieved constitutional equality for their women and men;

therefore, be it RESOLVED, BY THE HOUSE OF REPRESENTATIVES OF THE NINETY-THIRD GENERAL ASSEMBLY OF THE STATE OF ILLINOIS, THE SENATE CONCURRING HEREIN, that the proposed amendment to the Constitution of the United States of America set forth in this resolution is ratified;

and be it further RESOLVED, That a certified copy of this resolution be forwarded to the Archivist of the United States, the Administrator of General Services of the United States, the President pro tempore of the Senate and the Speaker of the House of Representatives of the Congress of the United States, and each member of the Illinois congressional delegation.

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.