Our nation was founded on the fundamental democratic principle, proclaimed in the Declaration of Independence, that the only legitimate form of government is one that derives its “just powers from the consent of the governed.”
Only by remaining faithful to this principle can “we the people” truthfully boast that ours is a government of laws and not men. The Founders believed that the people are sovereign and that democratic accountability to the people is essential to “secure the blessings of liberty to ourselves and our posterity.” So they adopted a written Constitution that divided power between the federal and state governments, and separated the federal government’s limited powers among three coequal branches.
As James Madison explained in Federalist 45, the Constitution establishes a “Federal Government of enumerated powers,” under which the “powers delegated … to the federal government are few and defined,” and the powers “to remain in the State governments are numerous and indefinite.” This limit on the federal government’s power was intended, as the Supreme Court has often noted, to “preserve[] an area of individual freedom by limiting the reach of federal law.” By delegating power over certain subjects to the federal government, the people consented to abide by federal laws pertaining to those subjects. But, as to those subjects over which the federal government has no delegated power, the people retained the freedom, vis—vis the federal government, to do as they pleased. And they retained the corresponding right to govern themselves within their respective states according to their own needs and values. Not content to leave these individual and democratic freedoms implied by the structure of our constitutional system of government, the founding generation made them explicit in the Ninth and Tenth Amendments: the enumeration in the Constitution of certain individual rights would not “be construed to deny or disparage others retained by the people,” and powers not delegated to the federal government would be “reserved to the States respectively, or to the people.”
The genius of this federal system of government is that it allows the people of, say, Massachusetts, and the people of, say, Texas to fashion their state’s laws to reflect their own, and often very different, political, economic, and moral values. This unique structure has allowed 50 widely diverse states to endure as one unified nation for well over two centuries.
Enforcing the constitutional boundary between federal and state power is the responsibility of the Supreme Court, and it is a zero sum game: any federal judicial expansion of federal power or individual rights comes at the cost of constraining the people’s democratic freedom and the state’s sovereign powers. This means that the Court should faithfully strive to interpret the Constitution’s protections of individual rights to mean today what they were understood to mean by the people who framed and adopted them. When the Court enforces individual liberties in this manner, it vindicates the will of the people, who consented to be governed by a written constitution. But when the Court invents an individual right found nowhere in the Constitution, the Court necessarily infringes on the people’s constitutionally reserved democratic freedoms, inflicting no less violence to the Constitution as would a decision reading a genuine individual right out of the Constitution. As Justice Scalia recently wrote in his dissenting opinion in the gay marriage case, the Court’s “practice of constitutional revision by an unelected committee of nine … robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.”
No case brings this reality into sharper focus than the Supreme Court’s decision last month interpreting the Fourteenth Amendment’s guarantees of “equal protection of the laws” and “due process of law” to mean that all 50 States now must recognize same-sex marriages. The Court does not say exactly when or how these words of the Fourteenth Amendment somehow came to mean this. They certainly did not mean this in 1868, when the Fourteenth Amendment was ratified by the people. Not a single person alive in 1868 not one would have agreed that the Fourteenth Amendment meant that same-sex couples have a constitutional right to marry. Nor did it mean this a century later. In 1972 a unanimous Supreme Court, which included liberal activists extraordinaire Earl Warren, William O. Douglas, and William Brennan, summarily rejected, on the merits, precisely this claim under the Fourteenth Amendment. The activist Warren Court deemed the claim so patently insubstantial that it did not even grant the petitioners a hearing.
So what has changed? When did the people consent to establishment of a constitutional right that denies them the democratic freedom to define marriage the way it has been defined by all civilizations throughout recorded history? The words of the Fourteenth Amendment certainly have not changed since 1972, nor even since they became part of the Constitution in 1868. The meaning of those words has not changed either. Only the Supreme Court has changed; it now includes five Justices whose political views strongly favor same-sex marriage. And so their views are now the law of the land. We have, then, a government of men, not laws, at least on this important issue of social policy.
It is no less important under our Constitution that courts be steadfast guardians of democratic liberty than that they be steadfast guardians of individual liberty. As Justice Scalia concluded in his dissent in the gay marriage case, “allow[ing] policy question[s] … to be considered and resolved by a select, patrician, highly unrepresentative panel of nine,” even under the pretext of promoting individual freedom, “is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.”
Charles J. Cooper is a founding member of the Washington, D.C. law firm of Cooper & Kirk, PLLC. Mr. Cooper served as the Assistant Attorney General for the Justice Department’s Office of Legal Counsel in the Reagan Administration.
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