The flaw of Judge Allen’s precluded muddle

I have frequent recourse to the Federalist Papers whenever I’m thinking about issues related to the U.S. Constitution.  I do so when I recall that Publius made an observation, analysis or argument relevant to the particular subject I’m trying to think through.  But there are times when I do so simply in order to breathe in the atmosphere of logical reasoning, deeply respectful of experience and common sense, which prevails throughout the work. This atmosphere permeates its pages so that, even though it is comprised of articles from three different pens, it has such consistency that historians have disagreed about which pen authored one article or another.

I thought of this recently as I read about Judge Arenda Wright Allen’s incompetently argued ruling that the provision of Virginia’s constitution that bans homosexual marriage somehow contradicts the U.S. Constitution, and is therefore invalid. To be fair, the Judge’s incompetence had its counterpart in the similarly negligent arguments made by some critics of her decision.

I use the word ‘incompetent’ advisedly, to refer to the question of whether the Judge had any authority to rule as she did in the matter at hand.  The people of Virginia have exercised their authority to define marriage, for purposes of law, since long before the adoption of the U.S. Constitution.  There can be no doubt that at the time the Constitution was adopted they had the right to do so.

Nothing in the Constitution explicitly delegates any aspect of authority over this matter to the Federal Government. In accordance with the Tenth Amendment, that authority is therefore retained by the State and people of Virginia, who rightly exercised it when they approved the Constitutional provision that, for purposes of law, excluded homosexual relations from the definition of marriage in the State.

In her ruling Judge Allen expressed the view that the State’s marriage laws “perpetuate prejudice and stigma and pain”, but her personal feelings provide no warrant of authority for interfering with the rightful exercise of authority over the definition of marriage by the people of Virginia.  Moreover, Judge Allen may believe that the U.S. Supreme Court’s supposed recognition of a so-called right of homosexuals to marry, puts the people’s exercise of their authority in conflict with the Supreme Law of the Land.  But given the plain language of the U.S. constitution it is logically impossible for her, or any other Federal Judge or Court (including the Supreme Court) to demonstrate by rational argument that this is so. In proof of which I offer the following:

Either there is some ground or basis in the U.S. Constitution for the so-called right of homosexuals to marry or there is not.  If there is ground, then something in the U.S. Constitution has been construed to establish this so-called right.  But the people of Virginia have exercised their rightful authority to define marriage since before the adoption of the U.S. Constitution, and Article X of the Constitution (the Tenth Amendment) plainly states that after its adoption they retained that rightful authority, which is nowhere to be found among the powers explicitly delegated to the U.S. Government.

Any authority the U.S. Judiciary purports to assert over the power of the people of Virginia (or any other State) to define marriage within their jurisdiction must therefore arise in the context of some general power delegated to the U.S. Government, and applied to constrain the authority over marriage by construing the provision for that general delegation of power in such a way that it warrants the U.S. Judiciary’s interference with this particular authority of the people of Virginia (or any other State).

But Article IX of the U.S. Constitution unequivocally states that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”  Thus even if the so-called right of homosexuals to marry be found by some trick of the eye to be among those entitled to be protected as Constitutionally enumerated rights, this construction may not be used to deny or disparage rights retained by the people.

The people of Virginia (and every other state) had, at the time the Constitution was adopted, rightful authority over marriage within their jurisdiction.  The authority being rightful, it is therefore their right to exercise it.  No right espied by subsequent observation to be lurking in the shadows of some shrewdly constructed wall or fixture of the U.S. Constitution may be construed to deny or disparage the right obviously retained by the people of the States during the centuries since the Constitution was adopted.

Such retained rights are therefore immune from denial or disparagement by the U.S. government or any of its branches.  Moreover, the language of the 14^th amendment explicitly says that “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”  The states are thereby forbidden to enforce as law any decision of any court (including the U.S. Supreme Court) that abridges the privilege (i.e., the proprietary right by law) to define marriage which the people of the states retain pursuant to the language of the Ninth Amendment.

By this simple reasoning (applying the basic logical rule known as the law of the excluded middle) no U.S. Court can have the authority to interfere with the retained right of the people of Virginia (or any other state) to define marriage for purposes of law.

For the so-called right of homosexuals to marry is either found explicitly among the enumerated rights in the Constitution, or it is not. By direct observation we ascertain that it is not found there explicitly. Therefore, if it is numbered among the rights the U.S. Constitution protects, its inclusion must be by construction upon some existing provision or provisions.

But the ninth amendment clearly forbids any such construction if it denies or disparages rights retained by the people.  Logically, therefore, the U.S. Courts (including the Supreme Court) cannot deprive the people of a retained right in order to impose respect for a right subsequently found, by ingenious construction, to be lying about in the shadows cast by that construction.

The only way to overcome this logical conundrum is by amending the U.S. Constitution so as to explicitly provide a basis for the U.S. government’s power to enforce this subsequently recognized right.  This was the logical reason why prudence dictated adoption of the 13^th and 14^th Amendments to the U.S., Constitution.  Reasonable people concluded that without them the citizen rights of persons freed by the abolition of slavery would have been subject to continual challenge.

How have we lost touch with the rationality that was so endemic to Americans that, even after the enormous sacrifices of the Civil War, they recognized and patiently acted upon its requirements? By abandoning this respect for reason, we move decisively from a government legitimized by the rational construction of just laws, to a government based simply upon the forceful imposition of prevailing opinion, however contrary to established, antecedent right, including the rights arising from the “laws of nature and of nature’s God.”

Some may pretend that such forceful imposition advances justice or compassion.  But in fact it brings us closer to the day when Americans who thirst for justice will find no satisfaction except to seek it in the baneful prosecution of just war against those who deny and disparage their right to do what is right.