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Do the states have the right to outlaw same-sex marriage?

Not long ago the question would have been seen as absurd. For every state regarded homosexual acts as crimes.

Moreover, the laws prohibiting same-sex marriage had all been enacted democratically, by statewide referenda, like Proposition 8 in California, or by Congress or elected state legislatures.

But today rogue judges and justices, appointed for life, answerable to no one, instruct a once-democratic republic on what laws we may and may not enact.

Last week, the Supreme Court refused to stop federal judges from overturning laws banning same-sex marriage. We are now told to expect the Supreme Court itself to discover in the Constitution a right of men to marry men and of women to marry women.

How, in little more than half a century, did the American people fall under the rule of a judicial dictatorship where judges and justices twist phrases in the Constitution to impose their alien ideology on this once-free people?

What brings the issue up is both the Court decision on same-sex marriage, and the death of my friend, Professor William J. Quirk, of the South Carolina University School of Law.

In “Judicial Dictatorship” (1995), Bill wrote of the revolution that had been imposed against the will of the majority, and of how Congress and the people might rout that revolution.

The instrument of revolution is judicial review, the doctrine that makes the Supreme Court the final arbiter, the decider, of what the Constitution says, and cedes to the Court limitless power to overturn laws enacted by the elective branches of government.

Jefferson said that to cede such authority to the Supreme Court “would place us under the despotism of an oligarchy.” Was he not right?

Consider what has transpired in our lifetime.

The Supreme Court has ordered the de-Christianization of all public institutions in what was a predominantly Christian country. Christian holy days, holidays, Bibles, books, prayers and invocations were all declared to be impermissible in public schools and the public square.

Secular humanism became, through Supreme Court edict, our established religion in the United States.

And the American people took it.

Why was there not massive civil disobedience against this anti-Christian discrimination, as there was against segregation? Why did Congress, which has the power to abolish every federal district and appellate court and to restrict the jurisdiction of the Supreme Court, not act?

Each branch of government, wrote Jefferson, is “independent of the others and has an equal right to decide for itself what is the meaning of the Constitution in the cases submitted to its action.”

“No branch has the absolute or final power to control the others, especially an unelected judiciary,” added Quirk.

In 1954, the Supreme Court ordered the desegregation of all pubic schools. But when the Court began to dictate the racial balance of public schools, and order the forced busing of children based on race across cities and county lines to bring it about, a rebellion arose.

Only when resistance became national and a violent reaction began did our black-robed radicals back down.

Yet the Supreme Court was not deterred in its resolve to remake America. In 1973, the Court discovered the right to an abortion in the Ninth Amendment. Then it found, also hidden in the Constitution, the right to engage in homosexual sodomy.

When Congress enacted the Defense of Marriage Act, Bill Quirk urged it to utilize Article III, Section 2 of the Constitution, and write in a provision stripping the Supreme Court of any right to review the act.

Congress declined, and the Court, predictably, dumped over DOMA.

Republican presidents have also sought to curb the Supreme Court’s aggressions through the appointment process. And largely failed.

Of four justices elevated by Nixon, three voted for Roe. Ford’s nominee John Paul Stevens turned left. Two of Reagan’s, Sandra Day O’Connor and Anthony Kennedy, went wobbly. Bush I’s David Souter was soon caucusing with the liberals.

Today, there are four constitutionalists on the Court. If the GOP loses the White House in 2016, then the Court is gone, perhaps forever.

Yet, the deeper problem lies in congressional cowardice in refusing to use its constitutional power to rein in the Court.

Ultimately, the failure is one of conservatism itself.


Indeed, with neoconservatives in the van, the GOP hierarchy is today in headlong retreat on same-sex marriage. Its performance calls to mind the insight of that unreconstructed Confederate chaplain to Stonewall Jackson, Robert Lewis Dabney, on the failure of conservatives to halt the march of the egalitarians:

“American conservatism is merely the shadow that follows Radicalism as it moves forward towards perdition. It remains behind it, but never retards it, and always advances near its leader…. Its impotency is not hard, indeed, to explain. It is worthless because it is the conservatism of expediency only, and not of sturdy principle. It intends to risk nothing serious, for the sake of the truth, and has no idea of being guilty of the folly of martyrdom.”


Patrick J. Buchanan is the author of the new book “The Greatest Comeback: How Richard Nixon Rose From Defeat to Create the New Majority.” Copyright 2014

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  1. Priss Factor [AKA "Andrea Ostrov Letania"] says:

    Keep in mind that the GOP beginning with Reagan/Thatcher aided and abetted in the rise of the global super-duper-rich. In this sense, the GOP got what it wanted. This ‘gay marriage’ nonsense did not come from Unions, the proles, the working class, blacks, or the People championed by the traditional bastions of the left.
    It came from the neo-aristocratic super-elites in Hollywood, Silicon Valley, Wall Street, big media(owned by Jewish billionaire oligarchs), elite universities with billions in funds, etc.

    Since the GOP since Reagan has been playing servant and cheerleader for the superrich–calling for lower taxes on the rich, more ‘free trade’, and more deregulation, etc–, why are conservatives like Buchanan pissed that the very people to whom Reagan and Thatcher pandered are now imposing their agenda on the nation with whore judges they bought and hired. The GOP slavishly played a role in the creation of a super-rich oligarchy. The super-rich now totally own government. Since the GOP just LOVES the rich, conservatives should be happy that the super-rich are now able to cram their agenda down all our throats.

    Furthermore, the anti-government and anti-intellectual rhetoric of the American right–Buchanan still denies the truth of evolution–raised generations of young conservatives who had no interest in working in government and academia, two key levers of power.

    Cons shot themselves in the foot.

    Conservatism must be a national socialism( small ‘n’ and ‘s’), not a soulless capitalism and mindless traditionalism mired in ignorance. Does Buchanan really believe the Noah’s Ark story?

    Thanks to GOP policies, Jews got richer and richer, bought up all the politicians and judges, and are now judgepacking this nation with a filthy re-definition of marriage that would have us believe that the poophole is equal to a sex organ. Poo-ride.

    As for abortion, let the Libs and blacks kill their own kids. Why should that bother us?
    How better if Obama’s mother had aborted that pile of puss?

    • Replies: @KA
  2. TomB says:

    Pat Buchanan wrote:

    Ultimately, the failure is one of conservatism itself.

    Yes, except not in the way Buchanan posits.

    To me at least its failure has been to mistake traditionalism and then even worse reactionism for conservatism (or to get sucked into doing so by some small, self-interested constituencies), and to forget, as Buchanan’s old boss Ronald Reagan himself would have reminded him, that it is libertarianism that is at the heart of conservatism.

    Thus, when Buchanan guts his own thesis of a “judicial dictatorship” by noting that Congress “has the power to abolish every federal district and appellate court and to restrict the jurisdiction of the Supreme Court,” and asks why it has not used this power, he is overlooking the real answer which is that much at the heart of our acceptance of the Court’s rulings that he doesn’t like is not only the moderate libertarianism of the Framers of the Constitution, but then not coincidentally that of the American people too.

    You bet, that is, lots of people didn’t like Brown v. Bd. of Education. And you bet (despite Pat’s careful omission of this issue) traditionalist “conservatives” didn’t like it, nor the Civil Rights Acts or etc. And yet who really believes that separate was equal? And who can fail to read the word “equal” in the 14th Amendment? And it’s hardly a knock on the American people to at least have *wanted* a color-blind society.

    And then when coming to Pat’s talk about the Court “de-Christianizing” the country, that’s right Pat; the American people did not rise up and occasion Congress to strip the Court of its jurisdiction or etc. Because at the heart of same they accept that little idea embedded in the First Amendment by the Framers that government and religion are two different things.

    Much the same is also true I believe concerning abortion, sodomy and same-sex marriage. Once again just conveniently Pat fails to mention that people saw what the traditionalists and reactionaries really wanted if they had their way: As featured in the Griswold case, the government right there, under the beds of married people even, making sure they weren’t using birth control devices.

    And each time the Stupid Party rallied to the traditionalists and the reactionaries, and each time … time itself proved that the American people were moderate libertarians and shared the common deep suspicion of government with our Founders and Framers. To the point where now, to declare oneself a conservative in educated circles can so easily be taken as an invitation to be viewed as ridiculous at the very least. As one preternaturally concerned with what other people are doing in their bedrooms, or who regard blacks as morally inferior.

    And what the damage from same, Buchanan? The decimation of credibility? Who, after all, is going to listen to this brand of “conservatism” when it talks on the one hand of the sacred right of government to decide … who can do what to whom in the bedroom, or get married, and to wire-tap and spy on you like mad, but then tries to convince people its wrong for government to essentially appropriate so much of their earnings in taxes? When it tries—as should be one of the easiest things in the world—to persuade people that it is ridiculous for politicians to have the power to take anywhere near 50% of their hard-earned wealth to buy themselves votes with?

    Or that government elsewhere in the economic sphere—you know, unlike in people’s bedrooms to where it really matters, as in the very creation of wealth itself—ought to be viewed with extreme suspicion and limited?

    You wanna “re-Christianize” the country Pat? Fastest way possible to find friends is to go join the fundamentalists who for the last decade-plus have found their latest love in demanding a never-ending new Crusade against the Mussleman and the occupation of their lands. And the power to listen in to every conversation or text message you might ever want to utter under some so-called “Patriot” Act.

    Sure, sure … *that’s* the the folks whose tunes conservatives should dance to. *They* are the ones who ought to be regarded as true conservatives. Such an unerring eye they have for exactly that which—for unimpeachable reasons—strikes deep deep suspicion and fears in the eyes of the reasonable, moderate tens of millions of middle-Americans.

    You know, the people who determine elections…

  3. @TomB

    “libertarianism that is at the heart of conservatism”

    I think this is called Concern Trolling. You seem to be a Left-Libertarian, not a Conservative.

    • Replies: @TomB
  4. That’s how they get things done.

    First comes the massive, brutal, stunning, prolonged, omnipresent propaganda barrage. It starts off slowly, then gathers speed, and eventually becomes the normal.
    Then the subtle shaming – oh, you are against gay marriage? You must be a bigot/ prude/ hater/ etc etc.
    Then the referenda and the attempts to pass law through the legislative body.
    If all that fails, comes the heavy artillery – judicial and/or executive fiat.

    Tried & tested system. Works every time. Typically takes 15-20 years to push through a major societal change. Why they want to implement these changes is somewhat murky. Many of these social justice warriors are just flat-out insane. But there is also a method to the madness… There are, as they say, good official reasons for doing something, and the real reasons for doing something. Ah, well.

  5. Priss Factor [AKA "freedom for all"] says:

    Someone force a Jewish publishing company to print antisemitic literature. Someone force a homo publishing company to print the collected works of Jerry Falwell. Someone force a black-owned clothing company to produce Confederate flags. Someone force a feminist-owned apparel company to make clothes depicting women as lewd sex symbols.
    After all, groups espousing such views and placing such orders are perfectly legal in the US and their rights of free speech are protected.

    So, if those companies don’t comply, sue them for violating rights of free speech and free expression.

    • Replies: @rod1963
  6. TomB says:
    @Simon in London

    I don’t know what “concern trolling” is, but, judging not only from your accusation of same and then the absolute entirety of the rest of your comment as well you seem to be a person enamored of names and labels. (Even if not employing them very accurately, or relevantly.)

    You accidently stumble across anything substantive you wanna say though and I’ll be here.

  7. IMO, most American conservatives don’t mind a ‘dictatorship’ as long as it goes their way. Plus, getting Conservatives to think about ‘process’ is almost impossible, they’d rather watch football and drink a beer.

    The Liberals captured the legal profession and the judges years ago. The only conservative recourse was to reduce Judicial power, which they’ve refused to do so. Part of it is laziness, part of it is their stupid worship of the status quo, and part is their weird belief that the SCOTUS is an elite institution which may give them Gay Marriage but will protect their property.

    Pat’s been writing this same column for 40 years, but I don’t think Conservatives will ever fight back in a meaningful way on this issue.

    • Replies: @Simon in London
  8. @Honesthughgrant

    I definitely think that Americans’ sacralisation of the judiciary is a huge weakness, which has been used against conservative and pro-Constitution Americans at least since FDR, but has become much worse since the 1960s. With Supreme Court and now lower court judges being political appointees, there is absolutely no reason to accord them such deference. When their judgements are blatantly in violation of the Constitution they are sworn to protect, when their arguments are so specious a child could see through them, they should be held in contempt.

    • Replies: @John Jeremiah Smith
    , @TomB
  9. @TomB

    You are bang-on right in “all of the above”, TomB.


    The Supreme Court has ordered the de-Christianization of all public institutions in what was a predominantly Christian country. Christian holy days, holidays, Bibles, books, prayers and invocations were all declared to be impermissible in public schools and the public square.

    Well, DUH. It was an establishment of religion, crystal-clear.

    Secular humanism became, through Supreme Court edict, our established religion in the United States.

    What utter absurdity! 99% of Americans don’t know what “secular humanism” IS, much less pursue the philosophy as a “religion”.

    This is all blarney, Buchanan. Don’t preach religion to us.

  10. @Simon in London

    I definitely think that Americans’ sacralisation of the judiciary is a huge weakness, which has been used against conservative and pro-Constitution Americans at least since FDR, but has become much worse since the 1960s.

    Not really, Simon. Most Americans are well-aware that the Supreme Court is the ultimate Operator for the oligarchy. Very few are fooled by the hype any more.

  11. TomB says:
    @Simon in London

    I think that’s a very trenchant way of putting it saying that we have “sacralized” our judiciary, especially since I think it’s partly a reflection of our sacralization of our constitution too, and of course like everything it has its weaknesses.

    On the other hand, Simon, unlike you guys on your sceptered isle, we didn’t have the hundreds of years of history and events (like the Magna Carta) and hard-fought Court rulings to give us some basic, foundational laws and structure, and so it seems to me a written constitution was a very good idea for us at least.

    Moreover, given our more polyglot makeup than Olde England at least used to enjoy, it seems to me a pretty big benefit to have a sacralization of the rule of law. Lots of different classes, races and etc., etc. to fight over things here: Not a bad idea to have *something* that everyone should at least bow down before. (And indeed unfortunately that idea seems to be leaking terribly in our immigration debates, with the idea that illegals here didn’t really have to pay any mind to our laws in the first place and indeed should get rewarded for ignoring same.)

    But anyway let me take more direct issue with you over your implication that we have had all too many of our Supreme Court cases be in “blatant violation of the Constitution.”

    That is, in accord with what I wrote originally while of course specialists and historians (and the self-interested and partisans!) are always going to find fault with this and that Supreme Court decisions, it seems to me to our public at large, given *their* appreciation of the Constitution, that they have not really seen all too many Supreme Court decisions be in *blatant* violation of the instrument.

    That is further, they may not even *agree* that some decision was rightly decided, but in the main, with the kind of decisions conservatives so often decry, they at least see the constitution indeed providing at least some good arguments for the results in those cases.

    For instance, and I’ll even use Roe v. Wade here to really try to illustrate my argument even if I regard it as probably the worst Supreme Court decision ever, my sense is that people *do* see a sort of “penumbra” of a right of privacy emanating from the Constitution. And, only naturally, especially a right of privacy when it comes to sexual and family matters.

    And so *this* is why I think we have not seen what Buchanan otherwise doesn’t explain which is why we haven’t seen the public rise up against the Court: The Court—perhaps with the exception of its busing cases—has at least managed to stay within the rough-enough bounds of what the Constitution can be read as meaning so as to keep it out of trouble with our citizenry.

    The same then goes for the Court’s decisions regarding … sodomy and homosexual marriage rights, and Brown v. Board of Education and other civil rights and liberties decisions: There’s just simply enough in the Constitution that the Court’s decisions have not been seen as blatant tramplings of it.

    Of course that’s not to say that this, that or the other decision hasn’t been wrong, or hasn’t worked a net ill. But it seems to me our Framers recognized that not only was the Constitution a legal document but it was a *public* document too, which is why even the great unwashed masses pledged to it. And that they also gave us, via not only our democratic rights but our ability to amend the instrument itself, our ability to fix things if we see them going seriously wrong.

    Once again then it seems to me Buchanan just stops short in not asking the “why” questions about the phenomenon he observes and following the logic. E.g., why, if the Court has been seen as a dictatorship as he posits, haven’t the people risen up against it? Well, one good answer is because the people *haven’t* seen it as a dictatorship.

    And this brings me back to my principal point too: Where the Court has done what *today’s* conservatives get most exercised about is where the Court has sided with a more libertarian view which I believe is the clear theme running through our Constitution. And, it seems to me, that moderate libertarian view is also the one very widely and deeply shared in this country, which is why the broad mass of people have *not* shared the modern “conservatives” horror at such Court decisions.

    The fault, as Buchanan says, *is* in (modern) conservatives. They have forgotten their patrimony.

  12. KA says:
    @Priss Factor

    You nailed it.
    but your reference to blacks or lib are misplaced or need refocussing. The self esteem of blacks go up a little bit everytime libs or Obamaesue MSNBC trot out some funny positions on race or gender or productive issues. Nothing more.

    The symbolism exhibited by lib or onservative have replaced real diaglogue on both sides. its all phony . The judges are phony.

    The current arrangement reminds me of the suggestion by the late exiled oligarch who told Putin to create two part system one advocating liberal ideas and other advocating conservative platform but with the caveat that both would be managed by the elite .

  13. KA says:

    So Pat where the country is heading to? Everything has been turned upside own. Christianity,conservatism,liberalism,education,economy.judicial system,police actions,media ,and entertainment – all have become pawns and turned into zombie by the few selected 1 % . They tell the rest what those mean ,how these should be transacted ,how be observed,how be enjoyed,how be created. They ,these foreign rootless cosmopolitan , have again and again used the argument that what they do and suggest or force on the rest are perfectly Christian and perfectly in alignment to the core ideas of the founding fathers .

    Someone has said not that long ago that when fascism comes to US ,it will come waving the flag and displaying the bill of rights.
    We are already there .
    How did you get here ?

  14. rod1963 says:
    @Priss Factor

    Won’t happen, the tribe and their meat puppets on the court won’t allow it.

    It all boils down to a assault on Western Civ and those of European descent and replacing traditional values with a set that appeals to those rootless cosmopolitans who own the media, Hollywood and Wall Street.

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