END OF THE CONSTITUTION?

In his typical fashion, Cal Thomas overreacts to Graham vs. Texas:

Has the end of the world arrived because the Supreme Court ruled that 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.

I’m not sure in what sense this is true. If by this he means that, by reading something into the Constitution something that clearly isn’t there–which I agree the Court did–then the Constitution ended in 1803 with Marbury v. Madison, if not before. In that case, Marshall and Co. granted themselves the power to render acts of the legislature moot, something clearly not contained in Article III and much more destructive of the constitutional order than this case. And, surely, rulings like the 1938 case that expanded the definition of interstate commerce so broadly as to virtually overturn federalism was more important. Indeed, there are arguably dozens of examples one could put forth here.

I agree with Thomas here:

Writing for the majority that struck down the Texas anti-sodomy law, Justice Anthony M. 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.

I think this is a bad thing, for reasons I’ve articulated repeatedly. But, again, this is hardly new. SCOTUS has been doing that for quite some time. Just look at the history of 14th Amendment interpretation, for example.

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.

I agree that the case will have far-reaching implications, many of which I find distateful or at least extra-constitutional. How it would force changes in school curricula escapes me, however.

Justice 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.”

Probably true, although laws prohibiting fornication and adultery, at least, would likely have been ruled unconstitutional decades ago if they were regularly enforced. And much obscenity law has been rendered unenforceable by the Internet.

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?

Agreed.

FILED UNDER: Law and the Courts
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.