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.


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  • Posted by: Colonel Joe - Aug. 13, 2010 6:42 PM ET USA

    Awesome analysis--both Diogenes and Fr. Matthew. Needs wider dissemination. JFM

  • Posted by: - Aug. 13, 2010 10:49 AM ET USA

    If you reject that marriage was created by God, and instead it is a man-made institution, then by the will of the people (or some activist judge) the legal limits of marriage can be changed. After some time passes and most of the population accepts legal homosexual unions, we get to go through this again with legalized polygamy and who knows what else.

  • Posted by: Lilacs2me - Aug. 12, 2010 9:50 PM ET USA

    No problem, since Kagan & other justices & judges consider it a "living" Constitution. You know, kind of like silly putty--you can mangle, smash and create anything you want out of the original words of the document. Anything, of course, except what the writers of the Constituion actually intended. I am very afraid for my country right now.

  • Posted by: MatthewG - Aug. 12, 2010 9:35 PM ET USA

    Not a bad idea, but I think you are holding back and not going all the way to the logical conclusion: it's rationality itself that is unconstitutional.

  • Posted by: Chestertonian - Aug. 12, 2010 8:42 PM ET USA

    It is sadly ironic that, had the American Psychological Association never removed same-sex attraction from their list of mental disorders, this question would never have come before the courts and Walker could never have admitted his own homosexuality and been appointed to the bench. The APA made a political decision, with no supporting medical evidence, and we are forced to live with the obscene fallout. Walker may say gay 'marriage' is constitutional, but that doesn't make it moral or normal.

  • Posted by: Gil125 - Aug. 12, 2010 5:46 PM ET USA

    Neither Judge Walker nor at least four of the Justices of the Supreme Court have any problem with today's court making such a determination. The Constitution, as a former White House Consel said, is what the Supreme Court says it is. Cf: http://www.gopusa.com/news/2005/july/0707_gonzales_court1.shtml