The People Still Have the Final Say (If They Want It)

Posted on June 29, 2015 in Justice, Law

By Edward J. Lamport

Pardon my interruption of Dennis Ricci’s blog. I’m United States District Judge Edward Lamport, the lead character in his novel, Perilous Judgment.

The Supreme Court certainly stirred things up in our country this past week, and I barged into this forum to share my thoughts as a federal judge and as a concerned American.

Before I do, I want you to know that I consider myself an originalist—one who bases his rulings on the original intent of the Constitution and federal laws as best as I can discern. That, by the way, is my official job description—and every federal judge’s.

You should also know I’ve gathered a reputation as a legal maverick. Before I was appointed to the federal bench I was a county and federal prosecutor. I was the people’s advocate. I pushed the envelope when necessary to get to the truth and win convictions. Many accused me of never meeting a media interview I didn’t like. I don’t disagree. My attitude was it helped to have public opinion on your side when trying a high-profile case. I may have gotten right to the line, but I always stayed inbounds.

Now that I’m a federal judge, I’m not supposed to do that. The oath I took swore me to impartially administer justice. Every federal judge takes the same oath.

In my opinion, five Supreme Court justices did not fulfill their oaths last week, and as a result, I am deeply concerned for the future of our democracy and our nation. But not for the reason you might think.

In the state marriage law case, Chief Justice John Roberts pointed out in his dissent that the majority read into the Fourteenth Amendment law and intent that wasn’t there. He said the Constitution “had nothing to do” with their decision.

In the Affordable Care Act case, Roberts was accused of doing the same thing in his majority opinion because of how he interpreted a sentence in the law on health insurance tax breaks.

Both decisions have broad social implications. But universal health insurance is a national policy concern of the last forty years, give or take—though some now argue it’s a fundamental human right—whereas marriage between a man and a woman is as old as the human race.

Six justices said, in essence, the ACA law is fine as it is. But the Court’s ruling doesn’t prohibit Congress from fixing the law.

In the marriage case, five justices allowed themselves to be swept up in the zeitgeist, the spirit of our time—something their lifetime tenure is supposed to insulate them from.

I don’t believe, in a democracy, that five people should make a decision that changes the course of the nation.

There is a separation of powers in our federal government, and decisions of both policy and principle are supposed to be made by the people and their representatives—the Congress.

The marriage issue needed to be settled by the people. It wasn’t.

But it still can be.

Our founding fathers, in their wisdom, made provision for our Constitution to be amended. The people, through their elected representatives at the state and federal levels, have the power to change Constitutional law.

Since the ratification of the Bill of Rights in 1789, we’ve amended the Constitution seventeen times. If an issue as fundamental as marriage, which affects all citizens, needed to be clarified in the law of the land, then it needed to be done through the constitutional amendment process. That’s why the provision is there.

The amendment process takes time. It’s supposed to. Debate in both houses of Congress. Passage of a uniform resolution. Ratification by at least thirty-eight states.

Our last attempt, the 1972 Equal Rights Amendment, was not ratified. Congress set a seven-year deadline and then extended it by three years. Say what you want, the will of the people prevailed. The Constitution worked as designed. (Technically, the most recent amendment was ratified in 1992…but it was originally proposed in 1789.)

My concern for our nation, my deepest fear about our future, is this: our must-have-it-now culture, fueled by can-have-it-now technology, will never again have the stomach for the Constitutional amendment process. The American people will cede their democratic privilege and responsibility to the power elites. Which will lead to more judicial fiats and more social division. Or worse.

The President of the United States has no role in the constitutional amendment process. No federal court can declare a ratified constitutional amendment unconstitutional.

Perhaps therein lies the problem.

All right. I’ve said my piece. If you don’t like my thoughts, take it up with the guy who conjured me up. If you like them, let him know that too.

I yield this blog back to its appointed steward.