Some readers have interpreted my earlier post as a defense of the president’s position on the Defense of Marriage Act. It is not. I think Obama is wrong on DOMA’s constitutionality, is constitutionally obligated to enforce DOMA as long as it remains on the books, and that his Justice Department would be right to defend the law against dubious constitutional challenges. But I do think some conservatives are using a bad argument against Obama’s position: they are invoking the Supreme Court as the sole arbiter of what is constitutional.
The Supreme Court has seldom protected the Republic from any of the unconstitutional growth of the federal government since FDR’s Court-packing scheme. It has much more often struck down legitimate state and local laws on behalf of liberal social engineers, especially since the Warren Court. Accepting the notion that the Constitution means whatever judges say it means — and that the elected branches of government have no right to publicly express their independent judgements about the constitutionality of federal activities — won’t get conservatives where they want to go even if it is a convenient argument to make at this particular moment.
An intellectual exercise: Would you believe Obamacare was suddenly constitutional if the Supreme Court declined to overturn it? If the Court not only decided to overturn DOMA but issued a Roe v. Wade of gay marriage, would you believe the people who wrote and ratified the Constitution intended that result? Was the original Roe a correct reading of the Constitution? If you answered “no” to any of these questions, you’ll see why arguing that only the Supreme Court can decide what is constitutional is counterproductive at best.
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