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We Shall Overcome (the Constitution, apparently)

April 6, 2009

I haven’t had time to read up on the country’s response to the Iowa  joining Massachusetts and Connecticut as the only states that officially sanction same-sex marriage.  Far be it for me to take on either the Iowa Supreme Court or prevailing social opinion.  I honestly believe the movement for official recognition of gay marriage is a fait accompli.

Instead, I take issue with the primary logic used to arrive at this decision and the enormity it represents to an constitutional originalist like myself.  Of particular concern is this statement:

The concept of equal protection is deeply rooted in our national and state history, but that history reveals this concept is often expressed far more easily than it is practiced. For sure, our nation has struggled to achieve a broad national consensus on equal protection of the laws when it has been forced to apply that principle to some of the institutions, traditions, and norms woven into the fabric of our society. This observation is important today because it reveals equal protection can only be defined by the standards of each generation. (The full text can be seen here.)

In other words, let’s not apply a litmus test of strict constructionism and let’s not look to original intent.  From now on the overarching factors when considering whether or not a legal concept is worthy of consideration are the prevailing mores of society.

This is anti-constitutionalism writ large.  The precedence this logic  establishes is dangerous, to say the least.  No longer are the words of our forefathers and the text of the Constitution the underpinnings of our laws; instead we must only consider whatever tickles the collective fancies of our Gen X’rs and Gen Y’rs.

Some claim we  now  have a “living Constitution.”  I believe the Constitution as we’ve  known it is dead.

In 2001, Barack Obama gave an inkling of his disdain for originalism when he spoke about another equal protection issue, the Warren Court’s rulings on civil rights. He said the following:

…[the Warren Court] wasn’t that radical. It didn’t break free from the essential constraints that were placed by the Founding Fathers in the Constitution…

It’s apparent that we have a sitting President and a Supreme Court in the state of Iowa who both feel that the text of the Constitution contains “constraints” that must be overcome to ensure their view of progress.  What have we wrought?

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