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Lynn Wenzel: The Constitution is a living document

Lynn Wenzel
Lynn Wenzel
John Hart/jhart@theunion.com | The Union

If, historically, in handing down decisions, the Supreme Court had adhered only to the 10th Amendment to the Constitution (States Rights), we would, no doubt, still have “back of the bus” practices, Jim Crow, unequal education and “White-Colored” drinking fountains. The equal protection clauses of the Fifth and 14th Amendments trump that.

The question was, “Does the Defense of Marriage Act (DOMA) which defines the term ‘marriage’ under federal law as a ‘legal union between one man and one woman’ deprive same-sex couples who are legally married under state laws, of their Fifth Amendment rights to equal protection under the law.” The answer was yes.

Justice Kennedy noted that “regulation of domestic relations is within states’ traditional authority” but, “the sweeping nature of DOMA as applying to all federal laws, had the purpose and necessary effect of treating differently a relationship that the state treated the same.” This “demeaned” the married couple. Further, Justice Kennedy ruled the law unconstitutional, explaining that, although the states have long had the responsibility of regulating and defining marriage, some states have opted to give same-sex couples the right to marry, thereby affording them the protection and dignity marriage imparts. By denying federal recognition to same-sex couples who are legally married, federal law discriminated against them.

The court held that DOMA goes against legislative and historical precedent by undermining marital relationships in some states and not in others. Ultimately, the court held that the purpose and effect of DOMA was to impose a “disadvantage, a separate status and a stigma” on same-sex couples in violation of the Fifth Amendment’s guarantee of equal protection. In other words, you just can’t have it both ways!

It took suffragists 95 years of sweat and tears to get the word “male” out of the Constitution with the passage of the 19th Amendment, so that, beginning with my grandmother, women could have the right to vote.

Regarding the Obamacare decision, the disputed phrase was an unintentional, clumsy mistake by the Congressional framers and the intent was not to make the law different for every state. “It’s well established that laws should be judged in their entirety, and not on a few stray words. Recognizing this principle does not make Justice Roberts a liberal, it makes him a judge,” said Jeffrey Toobin at NewYorker.com. What congress intended is what the court decided.

The Constitution is a living document. It took suffragists 95 years of sweat and tears to get the word “male” out of the Constitution with the passage of the 19th Amendment, so that, beginning with my grandmother, women could have the right to vote. Although beautiful, it is inadequate. It speaks directly to the sort of people who were enfranchised in 1787, which obviously did not include women or blacks. But the Constitution does speak gloriously to the notion of equality. It requires not a “head of a pin” reading, but an educated, open-minded application to the world we live in today, with equality as the founding principle upon which future opinions should be based.

As far as the description of the members of the Supreme Court as “five unelected lawyers,” the framers were pretty smart in dividing up the three parts of government the way they did. I hope that our court, free from the petty disruptions and ethically-challenged demands of running for political office, come to the decisions they believe are constitutionally correct, and that goes not just for the five who decided in the DOMA case, but the minority as well. The court’s decisions would be meaningless and its status hollow if the members were subject to the political whims of corporations, lobbyists, and PACs.

We, the people, elect a President who then, if there is a vacancy, nominates a Supreme Court member. That person then appears before the Senate (the members of which are also elected) that then engages in its Advise and Consent role. We may not always like or approve who is named to the Supreme Court, but the system, as it was designed in Article III, Section 2 is beautifully constructed to provide a system of “checks and balances” establishing the separation of powers. This has (mostly) worked for 228 years. And it is the cornerstone of our democratic system.

Finally, to address the statement — “one last point that progressives have clung to: that the Constitution evolves over time” and his buttress using George Washington’s quote, “…let there be no change by usurpation; for though this in one instance may be the instrument of good, it is the customary weapon by which free governments are destroyed…” Washington’s supposition is not part of Article V. It is one 18th century man’s opinion. Of those, there are countless.

I like what Nobel Prize winner Aleksandr Solzhenitsyn said during a 1978 commencement address at Harvard: “A society which is based on the letter of the law and never reaches any higher is taking very scarce advantage of the high level of human possibilities. The letter of the law is too cold and formal to have a beneficial influence on society. Whenever the tissue of life is woven of legalistic relations, there is an atmosphere of moral mediocrity, paralyzing men’s noblest impulses. Let us hope and pray that those who serve our government continue to be motivated by the noblest of intentions.”

Lynn Wenzel, who lives in Grass Valley, is a member of The Union Editorial Board. Her opinion is her own and does not represent the viewpoint of The Union or its editorial board.


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