How shall we respond to a lawless decision in which the Supreme Court by the barest of majorities usurps authority vested by the Constitution in the people and their elected representatives? By letting Abraham Lincoln be our guide. Faced with the Supreme Court’s Dred Scott decision, Lincoln declared the ruling to be illegitimate and vowed that he would treat it as such. He squarely faced Chief Justice Roger Brooke Taney’s claim to judicial supremacy and firmly rejected it. To accept it, he said, would be for the American people “to resign their government into the hands of that eminent tribunal.”Be that as it may, there are few politicians of the stature of Lincoln roaming Washington in our day. Republican legislators feel helpless to prevent the Supreme Court from usurping the role of the legislature as long as the Democrats actively support the usurpation, and they do. The only way Democrats can impose their agenda upon the nation is by doing an end-run around the people and getting it passed through the courts, so that's been their tactic for the last half-century or more. As long as the American people continue to vote into office people who hold Constitutional principle in low esteem, or waste their vote on marginal third-party candidates, it's hard to see how there can be a political solution to the problem.
Today we are faced with the same challenge. Like the Great Emancipator, we must reject and resist an egregious act of judicial usurpation. We must, above all, tell the truth: Obergefell v. Hodges is an illegitimate decision. What Stanford Law School Dean John Ely said of Roe v. Wade applies with equal force to Obergefell: “It is not constitutional law and gives almost no sense of an obligation to try to be.” What Justice Byron White said of Roe is also true of Obergefell: It is an act of “raw judicial power.”
The lawlessness of these decisions is evident in the fact that they lack any foundation or warrant in the text, logic, structure, or original understanding of the Constitution. The justices responsible for these rulings, whatever their good intentions, are substituting their own views of morality and sound public policy for those of the people and their elected representatives. They have set themselves up as superlegislators possessing a kind of plenary power to impose their judgments on the nation. What could be more unconstitutional—more anti-constitutional—than that?
George concludes:
The rule of law is not the rule of lawyers — even lawyers who are judges. Supreme Court justices are not infallible, nor are they immune from the all-too-human temptation to unlawfully seize power that has not been granted to them. Decisions such as Dred Scott, Roe v. Wade, and Obergefell amply demonstrate that. In thinking about how to respond to Obergefell, we must bear in mind that it is not only the institution of marriage that is at stake here — it is also the principle of self-government. And so we must make clear to those candidates for high offices who are seeking our votes, that our willingness to support them depends on their willingness to stand, as Abraham Lincoln stood, for the Constitution, and therefore against judicial decisions—about marriage or anything else—that threaten to place us, to quote Jefferson, “under the despotism of an oligarchy.”Unfortunately, a "despotism of an oligarchy" is precisely what at least half of the people who take the trouble to vote apparently want. The task ahead is to re-instill in the American soul a love of freedom, and that's a task that, if it succeeds at all, will take generations to accomplish. Have a happy Independence Day.
