“July 4 is the day on which we are supposed to celebrate the Declaration of Independence. But now, for the first time in the history of the United States, July 4 must be a day of mourning, not of celebration. For Americans of goodwill must commiserate, in the wake of a Supreme Court decision in which an impudent, prejudiced majority struck what they intend to be a death blow against the self-evident truths the Declaration admits and proclaims. …”
This week I published an essay in two parts on the U.S. Supreme Court’s Obergefell decision. I concluded the essay with the words quoted above. Americans still loyal to the premises of right and justice must emphatically reject this decision. They must refuse to submit to it, just as in colonial times America’s first patriots refused to submit to British taxes imposed without regard for the will of legislatures elected by the people; just as in the years before the last Civil War, people of good conscience refused to abide by the Fugitive Slave acts and the U.S. Supreme Court’s Dred Scott decision; just as in the last century people committed to God’s endowment of human justice opposed government sanctioned racial segregation and discrimination, enforced in disregard of the equality of nature conferred by the title of humanity.
The Obergefell decision is a more directly treasonous betrayal of constitutional law and justice than any of those previous acts of tyranny. As ratified by the American people, the U.S. Constitution derives its authority from their sovereign will. In the Declaration of Independence they cite the authority of “the laws of nature and of Nature’s God” and the will and judgment of the Creator and Judge of all the world, as the basis for their claim of sovereignty. By purporting to extend the name of marriage to acts and relations that make no imperative contribution to the common good of human nature as endowed by the Creator, God, the U.S. Supreme Court challenges that will and judgment, treating it as of no account.
But if the sovereign power of the Creator is of no account, then the authority from which the people of the United States claim human sovereignty over themselves is of no account. The logic of the Supreme Court’s decision thus directly challenges the ratifying authority (i.e., the authority of the people as conferred by the Creator) that makes the Constitution the Supreme Law of the Land. So the decision is not just an attack on some provision of the Constitution, nor even an attack on the institutional arrangements it establishes. It is an attempt to shut down the font of legitimacy from which flows the Constitution’s lawful claim to represent the authority of a sovereign power.
If the Obergefell decision stands, America’s constitutional government of, by, and for the people, falls. This is the import and real intent of the Obergefell decision. Note well that by shutting down the font of legitimacy, the justices of the Supreme Court have outflanked any and all provisions of the Constitution. It is, for example, a rationally necessary and well-established principle that the free exercise of religion does not extend to crimes. If, in lawful exercise of sovereign power (sovereign meaning especially, for the sake of the common good) the body that bears responsibility for the law enacts a prohibition against some unjust act, the fact that the action is essential in consequence of even a sincere and longstanding religious belief does not constrain the sovereign’s responsibility to enforce the criminal law.
Therefore, if the Obergefell decision is regarded as a legitimate exercise of the judicial power vested in the Supreme Court by the Constitution, the argument based on the Constitution’s First Amendment fails. In characteristically sly fashion, Justice Roberts says as much in his dissent, when he reminds the majority of the logic the Court previously used to uphold laws against polygamy, despite arguments based on First Amendment claims.
But neither Roberts nor any other justice points to the fact that the Obergefell decision does not just trample on the right of persons to live according to their religious beliefs. It cuts the ground out from under the God-endowed right of the American people to govern themselves in conformity with “the laws of nature and of Nature’s God.” In the Obergefell decision, the justices of the Supreme Court abuse the instrument of power conferred on them by the Constitution, to challenge the source of the people’s claim of rightful power to ordain and establish the Constitution in the first place.
The question is not, therefore, simply about the Court’s adherence to the terms and provisions of the Constitution. If it were, no dissenting justice would have shrunk from citing the Ninth Amendment’s succinct and plainly relevant language: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Until the Court purported to deny it, the people of the United State retained and exercised the right to respect the nature of marriage as instituted by the same endowment of human nature from which they derive their claim to human equality, and the unalienable rights their declaration of independent sovereignty proclaims to be the purpose for which governments are instituted.
The Court’s decision contradicts and challenges the source of legitimacy from which the people derive their power to ordain and establish the Constitution, which source is the power of the Creator. But the only power to which the Court itself has any rightful claim is sourced in the very power it sweeps aside. The justices pretend to brandish the sword of justice. But by their own usurping act, they have already cast it away. They purport to apply the power the Constitution vests in them, while themselves denying the authoritative source and substance of that power, which is the power of the Creator God. But if that power does not exist to constrain them, neither does it exist to constrain the people they purport to govern.
What we have here is a wholesale act of judicial nullification. If the United States were a monarchy, the sovereign’s throne would be vacant. But America has no throne. The seat of power is in the heart, mind and faithful courage of the people of the United States. If, from that seat of power, the Creator God still rules, this Court’s supremely treasonous act will not stand. Faithful to God’s rule, the people will rise up before His Judgment seat, and “appealing to the Supreme Judge of the World for the rectitude of our intention,” we will stand firm to uphold the government of right and decent liberty God’s hand of Providence still extends toward us. It remains within our reach, so long as we still trust in Him.
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