what if the constitution is unconstitutional?

By Diogenes ( articles ) | Aug 12, 2010

Thank goodness Judge Walker has enlightened us. All those years we thought that marriage was a union of a man and a woman, but now we know that was "an irrational classification." Not just irrational but harmful. Not just harmful but unconstitutional.

But there's a problem with Judge Walker's logic. If it is unconstitutional to disallow same-sex marriage, why was the old, unenlightened, restrictive, pre-Walker, irrational definition of marriage upheld by the very men who wrote the Constitution? Most of these men were members of legislatures; they could have revised the laws of their own states to make the legal definition of marriage match the principles that they were setting forth. Yet they didn't. Why not? Were they being irrational?

And if the authors of the Constitution were irrational men, what other nasty surprises might we have in store for us? What other emanations might emerge from the penumbrae of the document, leading us to discover a meaning apparently quite different from the Founders' own understanding? The men who gathered for the Constitutional Convention would have recoiled in horror at the idea that abortion, sodomy, or even contraception could be tolerated in society. Yet we now know, thanks to the infallible logic of contemporary jurisprudence, that these are fundamental rights, guaranteed by the document which these same men wrote. If they were so irrational-- if they were capable of crafting and enacting a document so totally at odds with their own beliefs and practices-- it's impossible to say what other time bombs might be hidden in the Constitution. It's safer to assume that they produced a document full of contradictions: a document at war with itself.

Judge Walker didn't go far enough. It's not just the definition of marriage that needs to be re-examined. There's bigger game in this legal forest. The real challenge for Judge Walker and his peers on the judicial bench is  to determine whether or not the Constitution is unconstitutional.