Whereas every Amendment to a Constitution substantially changes the Constitution, therefore it follows that every Amendment is counter to the Constitution. Otherwise, what is the point? The question is not whether Amendments are allowed to be counter to the documents they amend, it is whether we will allow Amendments at all. An even more important question is “Who?” Who will be allowed to Amend the Constitution? And underlying both these questions is the foundational one: Who should be allowed to Amend the Constitution?
To answer that question we should go back to the Constitution itself.
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
We the People created the Constitution. The People of the US created the US Constitution, and the People of California created the California Constitution. And when it comes to changes, the only legitimate source of Constitutional changes is The People.
There was nothing in the California Constitution for or against same sex marriage. Nor was there anything in the California Constitution for or against civil unions and other contracts that can duplicate each and every artifact of marriage within the law. Civil unions are already in place in California. Nothing prevents Fred and Barney from setting up house together in California, or Wilma and Betty.
However, churches, temples and mosques didn’t want to marry Fred to Barney, or Wilma to Betty, and that reality was the focus of an intense propaganda campaign to force the acceptance of same sex marriage, as opposed to functionally identical civil unions.
So in the year 2008 the People of California came together and passed Proposition 8 to protect the religious sacrament of marriage from a government created alteration. The vote wasn’t even close. Black people, brown people, people of very little pigmentation, men, women, youths, the elderly, all came together to pass Proposition 8. And this passed in the same election in which the same voters overwhelmingly voted for Barack Obama. These were not proto-Tea Partiers. These were the Democrat base.
Why would the People so overwhelmingly vote to preserve marriage as something different from civil unions? It is because there is a fundamental difference: Civil unions are for adults who want to create a meaningful formal statement of a relationship they share; Marriages are to bind together, with the blessing of God, a man and woman and the children they produce. There is a huge difference. Civil unions are legal entities akin to a partnership or corporation. Marriages are religious sacraments to create a family beginning with the raw material of a man and woman. Religious sacraments and mystical transformations of people into something else are not the domain of the government, they are religious to their very core. Any law that alters marriage by stripping out its religious meaning or substituting a government approved religious meaning is itself a violation of the Constitution, namely the 1st Amendment. And so, despite not needing to pass the Amendment in Proposition 8 (thanks to the 1st Amendment of the US Constitution), the people passed it anyway because they could see the writing on the wall, that their treacherous servants in government were hell-bent on stripping the sacramental and reproductive meaning from marriage and replacing it with a tax status.
The Amendment lawfully passed by the People of California was overthrown in a politicized kangaroo court by an unelected judge, who just for the record is homosexual. I wouldn’t even mention it, but as his political allies proclaim daily, the personal is political. And it indicates a possible motivation behind his decision, along with his public announcement of his sexual preferences around the same time, which may have been determined by his personal life rather than the facts of the case.
Judge Vaughn Walker’s stated reason for overthrowing the Amendment was that it was Unconstitutional. But as I pointed out, that is the whole point of Amendments in the first place. Every single Amendment that has ever been needed was Unconstitutional. Even the horribly unneeded 18th Amendment (Prohibition) was Unconstitutional until it became part of the Constitution. And the 21st Amendment that repealed Prohibition was likewise Unconstitutional until the People passed it.
Prohibition was such a terrible national mistake that it’s easy to muse wistfully, would it not have been much more convenient if a judge could have overthrown Prohibition when it was passed, simply by ruling against it as Unconstitutional? Perhaps convenient, but a little more thought shows the problem. The judge who decides to overthrow a lawfully passed Amendment has taken on himself, or herself, the power to rewrite the Constitution against the opposition of the People. Like a medieval King, he not only creates the Law, but determines the facts, admits the evidence, instructs the jury, decides the sentence, and pays the executioner. This judge is more than a judge: He is a tyrant.
What is to stop such a judge from overthrowing the 14th Amendment, or the 5th? Nothing in the Constitution or its Amendments is safe from a judge who believes himself to be Above the People and acts upon that belief with the support of an entire political party predicated on the power of government to control the People. Nor are the People safe from such a robed tyrant.
Let’s pray the Supreme Court of the United States sees its way clear to proclaiming the Amendment lawfully passed and unlawfully overthrown, and denies the claims of would be tyrants. May the People forever retain the power to overrule willful, obstinate, pilfering, rebellious, treacherous public servants.