End of the Constitution? (Cal Thomas)

Jewish World Review ^ | 7/1/03 | Cal Thomas

[truthandlife]

Has the end of the world arrived because the Supreme Court ruled no state may prohibit private, consensual homosexual conduct? No, the end of the world is being handled by the Supreme Judge. But the end of the Constitution has arrived, and that is something about which everyone in this temporal world should be concerned.

Writing for the majority that struck down the Texas anti-sodomy law, Justice Anthony Kennedy takes us on a journey with no fixed origin, no map, but a certain destination. His constitutional rewriting will lead to same-sex "marriage" and a Constitution that means to liberal judges what the Bible means to liberal theologians - a document to be tailored to the whims of culture, not the reverse. This, from justices named by Ronald Reagan (Sandra Day O'Connor and Kennedy) and George H.W. Bush (David Souter).

Beginning with the manufactured "right to privacy" created out of nothing by the godlike court in Griswold vs. Connecticut, Kennedy leads us through Roe vs. Wade (which many correctly predicted would follow Griswold) to the present Lawrence vs. Texas. He asserts that religious beliefs, history, tradition and even the desires of the majority to set parameters for the moral climate in which they wish to live are irrelevant. "Our obligation is to define the liberty of all, not to mandate our own moral code," said Kennedy. That can lead to anarchy.

Kennedy dismisses thousands of years of law, history and theology, choosing to rely solely on modern times: "In all events we think that our laws and traditions in the past half century are of most relevance here." Kennedy deletes the wisdom of the ages, preferring to download the squishy morality of post-modernism.

Sen. Rick Santorum (R-Pa.) predicted two months ago that if the court struck down anti-sodomy laws, challenges would soon follow to laws prohibiting bestiality, polygamy and all sorts of other sexual practices. We will now see him proved right (see Justice Antonin Scalia's remarks below). Prostitutes, call your lawyers. Kennedy said anti-sodomy laws "do more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home."

Supreme Court decisions like this one also have far-reaching consequences. Griswold led to Roe, which led to partial birth abortion. And this ruling will lead to same-sex "marriage," because the court has removed from the people their right to create community standards for themselves. Inevitably, this will force the schools to teach homosexuality as normal and not just an "alternate lifestyle." The trend in that direction was already well advanced before this ruling.

It fell to Justice Antonin Scalia to say what needed to be said. While chiding the court for reversing itself in a Georgia sodomy case (Bowers vs. Hardwick) only 17 years ago, Scalia took the majority's arguments and turned them back. He noted that if the logic for reversal was applied to Roe, then Roe would also fall.

He said that the majority believe a case should be overturned if "(1) its foundations have been 'eroded' by subsequent decisions, (2) it has been subject to 'substantial and continuing criticism', and (3) it has not induced 'individual or societal reliance' that counsels against overturning. The problem is that Roe itself - which today's majority surely has no disposition to overrule - satisfies these conditions to at least the same degree as Bowers."

Then Scalia gets to the heart of it: "Countless judicial decisions and legislative enactments have relied on the ancient proposition that a governing majority's belief that certain sexual behavior is 'immoral and unacceptable' constitutes a rational basis for regulation."

No wonder Kennedy wants to ignore history and appeals only to the last 50 years for his constitutionally twisted and morally specious rationale. Scalia declared the end to "all morals legislation. If the court asserts that the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws (prohibiting fornication, bigamy, adultery, adult incest, bestiality and obscenity) can survive rational basis-review."

This ruling and similar court usurpations of lawmaking power from the people's representatives will, and should, be a major theme in the coming election campaign. We know where the Democratic presidential candidates stand, as well as most Democratic members of Congress. Where do Republicans stand, and will President Bush make this an issue, as he should?

[Arrowhead]

Get your history book out. There is a case in 1761 between John Otis, the defendent, and Jeremiah Gridley, the prosecutor for the British Crown and ironically Otis' tutor at Harvard Law School which involved an argument over the legality of what was called the writ-of-assistance. This writ was like a search warrant that could be used for more than what is intended; to search beyond the scope of what is actually being looked for or even where they could look.

While facing a panel of three judges-one of which was a nemesis throughout John Otis' life, Thomas Hutchinson-Otis argued a great oration based upon the arguments by one, Sir Edward Coke, who "challenged the King's power...calling judges to nullify any act that went against an Englishmen's common rights, or against reason,...or if it violated the English constitution."

Now dig this: According to A.J. Langguth, author of Patriots, he writes: But a newcomer to the law like Hutchinson, who had not poured over Coke's commentaries, accepted Gridley's version of more recent history. For Hutchinson, British's Glorious Revolution of 1688 had not only deposed James II, but left Parliament the empire's Supreme authority. The British constitution was now only and whatever Parliament said it was.

Does this not sound strangely familiar to what Cal is saying with regards to Kennedy only relying upon case law within the last 50 years to determine decisions; instead of relying upon the previous centuries of wisdom that travailed through the trial and error of one society to another?

What we have here folks is classic history repeating itself.

Oh, by the way, Otis won the case. Be mindful that this case is what set in motion pre-notions of declaring independence from the Brits.

Arrowhead>>>-----Kennedy-->