This week the Iowa Supreme Court issued an opinion declaring its view that a state law banning same-sex marriage is unconstitutional. News articles reporting the opinion state that “the ruling becomes effective April 24.” Many news services and publications reporting the story use language that suggests that this opinion makes same-sex marriages legal in Iowa.
The Iowa Court’s opinion, like all such rulings, constitutes a judicial insurrection that assaults unalienable right in a fashion that threatens the existence of democratic self- government in the United States. (I have elsewhere made the arguments, based on American principles of justice, that support this conviction.) More immediately insurrectionary than the Court’s opinion, however, is the notion that in and of itself it somehow establishes what is lawful in Iowa. This notion overturns the republican form of government required by the Constitution of the United States, substituting in its place a form of tyranny all the more dangerous because it is imposed by abusing the forms of legality.
From the beginning of the United States it has been universally acknowledged that the republican form of government mandated by the U.S. Constitution requires “a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments.” This language in Madison’s famous article number 51 of the Federalist describes the twin safeguards of liberty we call “Federalism” and the “separation of powers.” The sovereign power of the people is divided through a specified delegation of limited powers to the United States government. But in both the State and U.S. governments it is also divided among three separate branches, the legislative, Executive and the Judicial. Of these, only the legislative branch, composed of elected representatives of the people, has the power to make laws. Only the Executive branch has the power to carry out the laws. Only the Judicial branch has the power to render judgment on specific cases arising under the laws. As Hamilton writes in Federalist 78 “The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”
Obviously, the separation of powers requires that, with respect to the power allotted to it, each branch has an independent obligation to the constitution from which its authority is derived. Thus those elected or appointed to participate in exercising one of the powers swear an oath to uphold and preserve that constitution, and consistently with this oath they may do nothing that violates its terms. The Executive is therefore required to obey laws constitutionally enacted by the legislature, and to carry out judgments constitutionally rendered by the judiciary, and so on. However, none of the branches can have the power by itself to decide for the others what the constitution requires. To presume such a power in the hands of any one of the branches would be to acknowledge that branch as the Supreme Arbiter of the whole power of government. It would thereby hold despotic sway over the other branches and the people themselves. This would defeat the main purpose of constitutional government, which is to prevent such unchecked tyranny.
Instead of this irrational presumption, the American republics reflect the essential unity of sovereign power by explicitly acknowledging the inherent power of each branch to check (that is hinder and oppose) and neutralize any unconstitutional action (that is, any action it considers unconstitutional) taken by one of the others. Such generally recognized inherent powers include the veto power of the executive (refusal to execute unconstitutional laws and judgments); the impeachment power of the legislature (action to override the Executive veto, and to remove officials of either of the other branches when a sufficient majority of the legislature believe they have acted contrary to the laws or the constitution); and the Judiciary’s power to adjudicate specific cases arising under the laws or the constitution. No such inherent power operates automatically, however. In no case can one branch be required reflexively to accept the constitutional opinion of another. Indeed they stand apart and are separate from one another only to the degree that they each have the inherent potential to refuse what they conclude are unconstitutional demands.
Of course, it’s not hard to imagine situations in which the three branches arrive at a stalemate. For example. the Judiciary issues a constitutional or other judgment which the Executive, on constitutional grounds, refuses to implement. Members of the legislature may be inclined to side with one or the other, but are so divided as to prevent effective action (impeachment for example) against either. In such cases, the issue must be decided by the people (they can elect a legislative majority sufficient to act against either the Executive or the offending Judges; they can elect an Executive that agrees with the Court, etc.) Though it may temporarily or even permanently affect the government’s ability to act in a given area, such inaction precisely corresponds to the overall intention of constitutional government, which is to prevent the consolidation of effective, arbitrary (that is, governed by no will but their own) power in the hands of any individual or group of individuals. On the issues most essential to the maintenance of liberty, this includes anything short of a constitutionally overwhelming majority of the people themselves. Ordinarily, however, it simply guarantees that elite groups are restrained from acting in the people’s name while really disregarding their views.
Of course, this latter result is exactly what the promoters of gay marriage seek to achieve. Time and again the people have expressed their opposition to the implementation of a concept of marriage that in principle disregards its connection with procreation and the attendant natural rights of parents. Now the elites seek to force the issue, making use of arrogant judges willing to reach for tyrannical power. People who read my last post on this blog, and understand its implications, will realize that this elite assault against the crucial pillar of the people’s moral sufficiency (the natural family) is no accident. Neither is it merely a coincidence that the chosen weapon for the assault involves overturning the constitutional mechanism that prevents elites from wielding power without formally consulting the wishes of the people.
The wisdom reflected in the constitution of the American Republics goes beyond some merely mechanical arrangement of government institutions. It reflects the insight the American founders would have derived from reading Machiavellian philosophers like Thomas Hobbes, whose work on citizenship is introduced by a letter in which he writes: “It was the speech of the Roman people (to whom the name of king had been rendered odious, as well by the tyranny of the Tarquins, as by the genius and decretals of that city)…that all kings are to be reckoned amongst ravenous beasts. But what a beast of prey was the Roman people…so that…Pontius Telesimus…cried out, that Rome herself…was to be razed; for that there would always be wolves and depradators of their liberty, unless the forest that lodged them were grubbed up by the roots. To speak impartially, both sayings are very true; that man to man is a kind of God; and that man to man is an arrant wolf.” (Hobbes, De Cive, The Epistle Dedicatory) By preventing the consolidation of sovereign power, except under the most extreme provocations, the separation of powers assures that the wolves (elites inclined to act without regard to right) keep one another at bay unless and until one pack (branch) or another of them convinces the people that their action accords with the natural disposition to do right that aligns human action with God’s will.
Of course, it is the constant effort of the ambitious elites to distract people from this overriding purpose of constitutional government, until eventually the people forgets it altogether. Demagogues, like Obama, use plausible rhetoric to convince people that the most important thing is to get things done. Therefore we must make sure government has the power to act immediately, even though this means acting without respect for the constitutional structures that ultimately call for the mediation of the people themselves. Because it effectively camouflages tyranny with the outward appearance of lawful process, the judiciary is the perfect implement for this elite effort. Pretending that acceptance of gay marriage can be imposed by judicial dictation adds the force of passion to the intended distraction, by dangling before minds weakened by corrupted appetites the titillating prospect of officially licensed sexual indulgence, unburdened by respect for its natural consequences, which include the responsibilities of procreation. (The movement for gay marriage pretends to be about homosexuality, when in fact it’s main objective is to remove the last trace of guilt or shame from heterosexual selfishness so as to destroy the moral prerequisites of the natural family. Thus, on the specious grounds that it somehow demeans homosexuals, the forces of political correctness seek to eliminate the very idea that the family takes a form that reflects natural, and therefore unalienable, right.)
The people of Iowa, and of any other state where the Judicial branch is used for this maneuver need to know that it is simply an abuse of power. Courts cannot fabricate and then impose new law, nor can they unilaterally decide what is constitutional. The elected representatives of the people in the Executive and legislative branches have the power to object, and to oppose or nullify such court opinions. They therefore have the responsibility to use this power to defend the conscience of the people they are supposed to represent. They are not bound to respect or obey court judgments they believe to be unconstitutional abuses of power. They are in fact oath bound to resist them by all the constitutional means at their disposal.
People who say this somehow overturns the rule of law are actually themselves cooperating in the overthrow of constitutional self-government. In Iowa this means that Iowans who oppose the Iowa Supreme Court’s abusive judgment have the right and duty to bring maximum pressure to bear on their Governor and legislators to do what their oaths require in order to defend the laws and constitution of Iowa from this attack upon the people’s right of self-government. They should demand that the Governor and all state and local officials refuse to implement the decision. They should demand that the legislature threaten and then act to impeach the usurping Judges. If their representatives fail to act accordingly, at the next opportunity they should be voted out of office. The people must speak and act until they get the attention of their representatives. If they fail to do so their inaction must be construed as acquiescence. Like their representatives, citizens of Iowa who support the natural family have a duty to perform. For the sake of right and liberty, all who are loyal to liberty should pray they will not fail in it.
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