By Douglas V. Gibbs
The U.S. Constitution is written in a manner in which it grants express powers to the federal government. As indicated in the 10th Amendment, any authorities not granted to the federal government by the U.S. Constitution, nor prohibited to the States, are State issues. If a need for an issue to be taken care of by the federal government arises, then the appropriate procedure is to grant the federal government that authority, which is done by the amendment process which culminates in three-quarters of the States ratifying the proposed amendment. In a sense, Congress proposing an amendment, and then needing the States to ratify it, is like the federal government asking for permission to have an authority, and the States determining whether or not to grant it. That makes sense when one considers that the creation of the federal government by the Constitution was orchestrated by the States, and the States giving the federal government a few of their powers. Prior to the Constitutional Convention in 1787, the States held all powers.
Marriage is an institution that government has no business being involved in in the first place. To be honest, I am not in favor of the institution of marriage being manipulated by government at all, or at any level. The institution should remain within the Church. However, government has poked its nose into the institution. Based on the 10th Amendment, if any government has the authority to get involved in the institution, despite my disapproval of any government getting involved at all, it is the States, not the federal government.
In California, as homosexuals around the nation have worked to change the definition of the term "marriage" after decades of ridiculing the institution, the voters passed a State Constitutional Amendment (Proposition 8) that changed the State Constitution to define marriage as between a man and a woman.
Since Proposition 8 is a State constitutional amendment, it is kind of silly calling it unconstitutional. It is now a part of the State Constitution, therefore it is constitutional at the State level. As for the federal level, we have established that the federal government has no authority over the issue, therefore the federal courts have no jurisdiction over the issue.
If the State government in California understood its own authorities, which includes nullification of unconstitutional actions by the federal government, the Governor and legislature would reject the federal court's unconstitutional ruling.
Beyond the Constitution, just the very fact that a single individual in a black robe can dictate to a State what it can or can't do, or overrule the vote of the people of that State, is unconscionable and absurd.
The very idea that the federal courts even have the authority of judicial review where the courts can strike down laws based on its interpretation on whether or not the law is constitutional is ridiculous, and a power the federal court system granted to itself in 1803 in John Marshall's written opinion of the Marbury v. Madison case. If one thinks about it, the very idea of judicial review is at complete odds with the idea of limiting principles as provided by the U.S. Constitution. The federal court system is a part of the federal government, and the ability to determine constitutionality is the ability to determine constitutional authorities. In other words, judicial review is the federal government deciding for itself its own authorities. Hardly in line with the limiting principles of the U.S. Constitution. That said, the courts may have an opinion on the matter of the constitutionality of a law, but they hold no legislative power. On the federal level only the Congress, as per Article I, Section 1, has legislative powers, which is the ability to create law, modify law, repeal law, et cetera. Therefore, the courts have no authority to strike down a federal law. In the case of a State law, or state amendment, that was passed under the authority of the State as per the 10th Amendment, the federal courts not only have no authority to strike down the State law, but they are not even supposed to hear the case in the first place.
Of course, the liberal left disagrees. The liberal left has continuously shown disdain for the Law of the Land. In fact, liberal Supreme Court Justice Ginsburg told Egypt that they probably don't want to use our Constitution as a model. Interesting statement by a person whose oath includes that she would protect and defend the U.S. Constitution.
In the case of gay marriage, it is up to each State. Some States may approve the concept of gay marriage, while others may disapprove of it. This means that the only way for it to be uniform one way or the other would be either for all of the States to agree on the issue individually, or for the federal government to be granted the authority over the issue by amendment, and then pass laws legislating uniformity.
In other words, the federal Defense of Marriage Act is unconstitutional as much as is the federal court's ruling to reject the validity of Proposition 8.
-- Political Pistachio Conservative News and Commentary
Prop. 8 struck down: Will California's gay couples flock to the altar? - Christian Science Monitor
Justice Ginsburg to Egyptian TV: You probably don't want to use our Constitution as a model - Hot Air
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