When one man, Justice Anthony Kennedy, acting as the deciding swing vote on the Supreme Court, declared that "gay marriage" was now the law of land for a country of some 320 million persons, he may as well have been seated on a planet other than the one originally occupied by the men who wrote the Constitution. Note that the new nation was titled "United" and not "Uniform" States of America. That wasn't a slip of the pen. America was never intended to be culturally and politically homogenous from sea to shining sea, though we hadn't quite gotten there as yet. But here we are today, rolled flat by the wheels of the Federal Juggernaut with nary a peep of protest by our local, state and federal representatives or executives.
Therein does lie the basic distinction between Conservatism and Originalism. Conservatism relates to one's position regarding an issue, originalism to the manner or by what means that decision is made. Yes, if Kennedy had decided against gay marriage, his decision would have been considered conservative and momentarily satisfied those with a conventional view of marriage. However, one should not think that this would have ended the matter since the gay political activists would certainly have redoubled their efforts to impose their preference upon those opposed. And so, political factions, regardless of the issue, may often end up chasing each other's tails in never-ending pursuit when the decision mechanics appear substantively unfair to one or both sides of a political difference of opinion. Employing the courts to make and enforce cultural or moral decisions is one way of ensuring societal discord. It didn't work with court-ordered busing that was intended to achieve racial integration of public schools. It still hasn't settled the abortion-on-demand issue. And it certainly won't peacefully and permanently institutionalize gay marriage no matter what Justice Kennedy or anyone else thinks.
When the Constitution was written and for a long time thereafter, many doubted that the Court had the authority to interpret the Constitution at all - in other words, they believed that the Court had no power of "judicial review." Alexander Hamilton, in Federalist 78, made the classic argument that, given a written constitution established by the sovereign people, the Court had no choice but to maintain the supremacy of the people's Constitution when it was alleged to be in conflict with an ordinary law passed by their representatives.
--"The Myth of Judicial Supremacy" Paul Moreno National Review June 26, 2015
What happened? How did the Supreme Court get to the point where it felt authorized, nay, obligated, to question and decide upon the legitimacy of state marriage statutes? Part of the answer may be found in what the Founders were unable to imagine or consider -- that the implicit use of English Common Law, the original foundation of American law, in the normal course of jurisprudence would not fully survive the Civil War and the Industrial Revolution. That being the case, the Founders never explicitly included the use and importance Common Law Principle in the design of the Constitution though it certainly is, or at least was and should be, implicit in its function.
One common Law Principle that has essentially disappeared from use is that of jury nullification. This principle was well-established English common law by the time the right to trial by jury was written into the Constitution. As described by Madison, jury nullification would provide the final defense against a tyrannical government. It was one means of preserving a government "of the people, by the people and for the people." It was intended as a direct veto over government power by ordinary citizens. Contrary to common opinion, jury nullification does not mean that a jury may decide what the law is. That's not the case. What it does mean is that a jury has a right to decide what is just even if its decision may be contrary to prior interpretation of a particular law. The jury may, regarding the specific case before it, judge the law to be unjust or unjustly applied. As a consequence, directed verdicts are prohibited. However, in 1895 the Supreme Court in Sparf v. U.S. ruled that jury nullification did not apply to the federal court system or cases. There went Madison's shield against tyranny right out the window. Use of this common law principle in state courts has also been rather effectively suppressed even where not formally prohibited.
Another example of how common law principle has been disregarded or sidestepped is related to the vast increase in the number of federal criminal laws. Consider, for instance, federal "hate crime" statutes. Even if a person is acquitted of violating a state criminal statute, that same person may be tried and convicted of a federal hate crime for that very same act. Is this not "double jeopardy"? It would certainly seem so, but apparently is not. The injustice of the legal principle of "strict liability," in contrast to the notion of criminal intent or mens rea, is nowhere more clearly illustrated than by the machinations that formed the basis of the Honduran lobster box case. This travesty of justice was finally put to rest by the Supreme Court in 2003 when a petition for a writ of certiorari was denied. Sorry, guys. You lose. Big Brother wins -- once again.
Of course, ignoring, distorting or misinterpreting common law principle is only a piece of the very large puzzle of how our federal government -- through the unchecked acts of the men and women who peopled it -- stealthily, though boldly, evolved into the overbearing behemoth that it is today. America bears little resemblance to the Republic that it once was. We have not kept it. Yes, we have elections. Yes, we retain, in part, the structure and functionality of the Constitution. But, like the law, letter and intent often part ways.
The federal government is a massive bureaucracy quite determined to retain its pay and privileges. It has purchased the vote of a goodly portion of the electorate through programs of questionable benefit to the country as whole. Its future is to be assured through the progressive indoctrination of children in the public K-12 school system. Political correctness and disdain for free speech have become standard operating procedure at many universities. America's military is underfunded and its traditions have been scuttled. The armed forces are now a laboratory for social experimentation rather than combat. All the major news sources, including to a fair extent FOX News, offer a one-sided, progressive slant on politics and current events. And perhaps most important of all, a large segment of the American people are more interested in and distracted by celebrity, sport, video games, internet porn and fantasy entertainment. We must be on the lookout for zombies and vampires. All American films must have sex, gun fights and car chases with minor modifications made to accommodate the science fiction genre. To no small extent we are a population frozen in an extended adolescence.
Distracting and worrisome crises are manufactured at will by the government, tax-exempt foundations and other NGOs. Big, Bad Business, the giant corporations, are out to rob and kill you while they're here to save you. Global warming, intentionally morphed into climate change, is the all-time champion of such charades. This and much more seemingly goes on forever while the federal agency alphabet soup of the IRS, EPA, INS, DEA, ATF, FBI, VA, USDA, SSA, SBA, NSA, NOAA, HHS, BIA, CIA and whoever or whatever else spend your tax dollars mucking-up ordinary citizens' lives and strangling the economy with ever more burdensome regulation. And when they run out of your money, the Treasury Department will gladly conjure more money up with the cooperation of the Federal Reserve. You just have to pay the interest. If you don't recognize some of the federal agency abbreviations listed above, you can find a more complete listing here. Have fun. It's enlightening.
Yes, we have an election coming up in November. But I haven't heard any of the candidates offer realistic proposals on how we're even going to begin dealing with all, most or any of the above. Immigration, anyone? And I don't see any presidential Alexander on the horizon who can cut through the Gordian Knot of our political bewilderment and frustration.
Good luck, America! You need it.