The Supreme Court and the Assault on Marriage

Article excerpt

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

These words, which most educated Americans will instantly recognize as the Preamble to their Constitution, represent the fortuitous coincidence of great ideas and beautiful prose.

America is a society of "People." She is not a loose aggregate of individuals. She is a "Union," not a collectivity of fragments. She wants "domestic Tranquility," not discord between intransigent individualists. She is dedicated to "Posterity," not to satiating herself in the present.

The Preamble makes it clear enough, as it enumerates its list of great philosophical ideas, that it recognizes man as a social being, one who fulfills himself, attains his happiness and discovers his meaning not in isolation from others, but through ordered cooperation with his fellow citizens. The founding fathers of the Constitution did not contemplate that it would ever be necessary to amend the spirit of the Constitution that its Preamble embodies.

So it would seem. But the sword can be mightier than the shield.

When the 1857 Taney Court ruled, by a 7-2 vote, that according to the Constitution, a black man is "property," Justice Benjamin Robbins Curtis, in his dissent, made the following comment: "[W]hen a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean." Dred Scott v. Sandford, 19 How. 393,621 (1857) (Curtis, J., dissenting).

In his lengthy and well-reasoned dissent, Justice Curtis did not lose sight of either the letter or the spirit of the Constitution: "That Constitution was ordained by the people of the United States ... These colored persons were not only included in the body of 'the people of the United States,' by whom the Constitution was ordained and established, but in at least five States they had the power to act, and doubtless did act, by their suffrages, upon the questioning of its adoption. It would be strange if we were to find in that instrument anything which deprived of their citizenship any part of the people of the United States who were among those by whom it was established."

Justice Curtis was showing admirable restraint in his employment of the word "strange." In his actions, he showed less restraint. He protested the infamous Dred Scott decision by resigning from the Supreme Court. He returned to Boston and to a private law practice. His thought, his integrity, and his legacy should not be forgotten.

He knew what was expected of him as a defender of Justice. He knew that politics is no better than the philosophical ideas on which it is founded.

The Constitution rightly insists that politics be founded on Justice. Lincoln knew this and expressed the matter in prose that is not only eloquent, but compelling. Concerning the issue brought to the attention of the Taney Court, Lincoln said: "Slavery is founded on the selfishness of man's nature-opposition to it on his love of justice. These principles are in eternal antagonism; and when brought into collision so fiercely as slavery extension brings them, shocks and throes and convulsions must ceaselessly flow." The alternative to reason is violence. The alternative to living by the Great Ideas is barbarism.

"Political reasons have not the requisite certainty," wrote Justice Curtis, "to afford rules of judicial interpretation." What are these "political reasons" that are detached from the notion of justice that undergirds the Constitution? …