by Daryl Dominic Tan
The recent Supreme Court decisions on Gay Marriage and Obamacare remind us that the Federal Government of the United States of America wields illimitable power today, and perhaps more importantly - it serves to remind us that States’ rights - the political powers that are reserved for the U.S. state governments rather than the federal government according to the United States Constitution, reflecting especially the enumerated powers of Congress and the Tenth Amendment - are being eroded. The Founding Fathers are probably rolling in their graves right now for they believed very much in the importance of States’ rights as an appropriate check & balance mechanism against the Federal Government. Proponents of Marriage equality are crying out that love has won, but the only real winner here is big government – all thanks to an inept Judiciary confused about its proper role.
For starters, personal views should never be conflated with political or juristic views as doing so almost always leads to unintended consequences. Whilst the outcome is what many people are celebrating, most have failed to see how the outcome was reached and the disastrous repercussions of such a decision as a result. To put it succinctly, marriage is an affair that should be regulated by the States and not the Federal Government. In fact, the entire concept of Marriage itself is a private and sacrosanct agreement between two individuals and the government simply has no place in such an arrangement. The fact that one needs such validation from bureaucratic State apparatuses points out the indisputable and unfortunate reality that people today view the government as the ultimate arbiter of every aspect of their private and personal lives.
That gay marriage is now legal nationwide thanks to Obergefell v Hodges is a terrible usurpation of states’ rights and is diametrically opposed to what the Founding Fathers had intended for America. The states should decide whether gay marriage should be legal and individuals who disagree with state laws should “vote with their feet”. That this right has been taken away from States’ to decide their own laws is reminiscent of why the American Civil War was fought in the first place, to keep states subservient and obedient to the Capitol. It is unfathomable that a traditionally conservative state such as Mississippi will now be compelled to allow gay marriage to be officiated in its jurisdiction under the watchful eye of an Ivy-league educated elite sitting in the White House a thousand miles away, and who better than to hand such unfettered reins of power over to the Executive branch of the government than the Judiciary, the very body that was designed to protect the United States from a totalitarian government. "One-size-fits-all" works for socks, not for federal constitutional republics that place a great emphasis on the federalist concept of states' rights and localism (such as the United States of America).
It appears that the Supreme Court has been usurping the functions of the Legislature, done through interpreting a Constitutional provision in such a manner as to essentially “make” new law. The justification for such a radical and erroneous interpretation? a majority opinion laden with emotive prose; nothing more than a mockery of the rule of law. Justice Anthony Kennedy specifically highlighted that the Constitution is a living document and must be interpreted in such a way in which it would be compatible with the prevailing times. Well, wrong. The proper process in “keeping up with the times” is to go through the proper channel of due process – through properly amending the constitution by virtue of what Article 5 of the United States Constitution provides, not interpreting the provisions in a manner that would essentially and brazenly create or “make” new law for that is the job of Congress.
It is not difficult to see that due process has become a moribund concept. A terribly irresponsible judiciary working side by side with a Federal government that seeks to implement policy through whatever means necessary can only mean one thing for America – trouble. As Alexis de Tocqueville always believed - caring about the outcomes and not the process is a precondition of tyranny, for a government big enough to give you everything you want is strong enough to take everything you have.
Big government wins today.
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