by Ilana Mercer
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The ban on the ban is unconstitutional.
This was the gist of broadcaster Mark Levin’s angry tirade against the humdrum, and certainly predicable, decision of a federal judge to strike down “Oklahoma’s voter-approved ban” on gay marriage.
At the center of conservative contretemps are similar decisions in California, New Mexico and Utah, following on which U.S. District Judge Terence Kern had “determined that Oklahoma’s constitutional amendment” violated the 14th Amendment’s Equal Protection Clause. It stipulates that “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Broadly speaking, WND’s Alan Keyes concurred with Levin, alluding to the Constitution’s 10th and Ninth Amendments by which “the judges and justices of the federal judiciary are forbidden to … deny the antecedent rights retained by the people.”
Indeed, “the prevailing view in 1791,” observed The Honorable Robert T. Donnelly, former chief justice of the Supreme Court of the state of Missouri, “was that the national government had only delegated powers and that reserved to the people was an undefined sphere of non-government within which people may not be interfered with by government.”
But that was then.
In voiding “voter-approved law,” Justice Kern has resorted to perfectly proper 14th Amendment judicial activism. Deploying the Equal Protection Clause of the 14th Amendment, Kern nullified the 10th. It specifies that, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
As expressed in the once-impregnable 10th Amendment, the Constitution’s federal scheme has long since been obliterated by the 14th Amendment and the attendant Incorporation Doctrine.
What does this mean?
If the Bill of Rights was intended to place strict limits on federal power and protect individual and locality from the national government—the 14th Amendment effectively defeated that purpose by placing the power to enforce the Bill of Rights in federal hands, where it was never intended to be.
In their love of Lincoln and the 14th, conservative constitutional originalists will disagree. They’ll say the 14th was meant to limit the power of the states and enlarge the power of Congress, not the Courts. “Congress, not the Court,” was to “implement the provisions of the 14th Amendment,” subject to judicial review.
And that’s somehow a good thing?
They “say tomato, I say tomahto.” As I see it, the 14th Amendment was a gargantuan grant of power to the federal government. That the judiciary has done what was left undone by Congress does nothing to alter the dismal outcome for liberty. The 14th spelt the demise of our Constitution’s decentralized dispensation.
Either way, the freedoms afforded by federalism are no longer because American federalism is no longer.
“The natural progress of things [being] for liberty to yield, and government to gain ground,” this inevitable momentum, in the form of the invented legal doctrine of “selective incorporation,” soon progressed—regressed is the right word—to complete incorporation.
A précis of Incorporation-Doctrine jurisprudence in the legal dictionary admits that “most provisions of the Bill of Rights were eventually incorporated to apply to the states.”
Put differently, matters previously subject to state jurisdiction have been pulled into the orbit of the judiciary.
Among other legal decisions to have been implicated by Justice Donnelly in expunging federalism from the Constitution is Cooper v. Aaron. In 1958, “the United States Supreme Court asserted for the first time in its history and in the history of the nation that its interpretations of the written Constitution in a particular case in one State constitute the ‘supreme law of the land’ under Article VI of the Constitution and are of binding effect in all of the States.”
“It is emphatically the province and duty of the judicial department to say what the law is,” declared the Court. (See Cooper v. Aaron, 358 U.S. 1, 1958.)
So much for Alexander Hamilton’s promise, in Federalist No. 78 (May 28, 1788), that the Judiciary would be the weakest of the three branches of his proposed government.
“Instead of protecting the legitimate interests of the states,” surmised Justice Donnelly (in “The Demise of Federalism: With Consent of the Governed?”), “the Supreme Court competes with Congress to dictate to the states their ‘legitimate’ interests.”
Commensurate with the power they’ve amassed, nine unaccountable, unelected, Supreme-Court judges now sit as “a Council of Revision over the states.”
Just as the interpretation of the 14th Amendment in Brown v. Board of Education became the supreme law of the land, so, too, will the states likely lose their (petty) marriage-licensing jurisdiction, once that coven of casuists, the Supreme Court, embroils itself in setting social policy for all the states.
Conservatives as astute as Mr. Levin, Esq., ought to quit misleading their readers and listeners about the restoration of a constitutional structure that has suffered death by a thousand cuts, long before the dreadful cur Obama appeared on the scene.
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