The Nearest Breezy Hill

Comes now some scholars with backbone, in order to point out that the Obergefail decision is a Hefty bag filled up tight with balloon juice. This is quite right, and so they go on to make practical applications, which include encouraging all concerned to consider the decision as having no application beyond the named plaintiffs in the case. This advice amounts to encouraging all officeholders — who have sworn to uphold the Constitution, incidentally, which is to be distinguished from Anthony Kennedy’s opium dream, in which the Constitution played a walk-on cameo role — to feel free to tell the sexual tyrants to pound sand.

Our Establishment pols want to say that this kind of showdown would provoke a constitutional crisis. This is because our Establishment pols want Théoden to die in bed and not on the fields of Pelennor. Dying in bed is not a crisis, and saving your honor on the battlefield is a crisis. A terrible crisis. He might expect somebody to come with him.

But the crisis — and it would be a crisis — would not be a constitutional one. Those who argue for judicial supremacy would treat it like a constitutional crisis because they want the Supreme Court to have the final word on everything, period. But the crisis would only be a crisis for a particular legal theory, not a crisis for the actual system of constitutional law established by the Founders. The crisis would actually be a leadership crisis, not a constitutional one.

There would be turmoil, sure. Kim Davis would refuse a marriage license to a homosexual couple because neither party is named Obergefell. If that kind of chaos broke out, it would be an example of a situation becoming ungovernable on a national level. But whose fault is that? This statement points out that this untenable and unstable arrangement was the work of five unelected hubristers trying to make breakfast for the dog, at which venture they succeeded admirably.

Even at the federal level, the doctrine of judicial supremacy is manifestly false. The Constitution says “the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make” (Art. III, Sec. 2). In plain English — for it is in plain English — this means that Congress has the authority to limit the jurisdictional authority of the Supreme Court. It could be a very simple law — “the United States Supreme Court shall not have the authority to restrict the authority of states to protect unborn human life, or to restrict the state’s authority to recognize true marriage.”

So I believe that officeholders across the country should take this grand proposal to heart, and simply refuse to implement the Obergefell decision beyond the case of the plaintiffs in question. This will of course cause a commotion, and so every 2016 candidate for president should be asked directly about Art. III, Sec. 2. If Congress passes the necessary legislation, would you sign it?

The one thing that no candidate should be allowed to do is shrug and say “alas, it is out of our hands.” No, it isn’t. Every candidate for the House, every candidate for the Senate, and every candidate for president, is running for a position that could play a key role in taking the Supreme Court’s Hefty bag to the top of the nearest breezy hill in order to empty it.