A historic term of the U.S. Supreme Court has just ended with major decisions showing how the law may change with the changing times.
Two cases involved gay marriage. In one the court overturned a federal law because it discriminates against gay marriages; in the other the court affirmed a ruling by a federal judge in California, opening the door for the resumption of gay marriage. It is the culmination of a social transformation that grew slowly over decades and then took hold in a significant way in the past 10 years.
The jurisprudence of Justice Anthony Kennedy, who wrote the decision overturning an important component of the Defense of Marriage Act, affirms the idea of judicial activism and the idea that the Constitution is a “living” document. It is a view contrary to the doctrine of “originalism” to which Justice Antonin Scalia adheres. Scalia believes the court should interpret the Constitution as the Founding Fathers understood its original meaning.
Kennedy foreshadowed the view he took in the DOMA case when he wrote the court’s opinion in the 2003 Lawrence case, throwing out laws criminalizing homosexual behavior. “Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight.”
In other words, those who wrote the Constitution and its amendments used language that was general, rather than specific, allowing for interpretation to change as times change.
“They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress,” Kennedy continued.
Previously, the court was blind to the truths of racial oppression and ruled that racial segregation was permissible.
Kennedy wrote: “As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”
The previous generation invoked the principles of the Constitution to secure the right to participate as equals in American society, unfettered by racism. We were no longer blind to the truths of our history, and finally the court found that the principles of equality in the Constitution applied to all races.
This generation has invoked the principles of the Constitution in seeking marriage equality. The framework of the Constitution constructed by the Founders was capacious enough that Kennedy and the majority on the court found that our principles of equality applied also to marriage.
The other landmark case of the week suggests that the present court has learned the wrong lesson from our racial history. In a case involving Shelby County, Ala., the majority struck down a central element of the Voting Rights Act of 1965. The court has the duty to subject the law to new tests based on our new understanding of “the truths of history.” But Chief Justice John Roberts has a dangerously selective understanding of those truths.
The Voting Rights Act required specific states and localities with histories of racial discrimination to obtain approval from the Justice Department before enacting changes in their voting laws. This was to prevent states from creating unconstitutional hurdles for voters. The states of the South at the time the law was adopted had made it a practice to bar blacks from voting. Preventing the states from re-instituting their oppressive practices was necessary — was responding to a clear truth of history.
Now Roberts believes that racial oppression is over and that those states previously forced to win federal approval to change their laws need not shoulder that burden. The truths Roberts refused to see involved the continuing attempts by numerous states, some in the South, to limit voting rights. Roberts’ ruling transformed the law in order to protect the rights of states to change their own voting laws, rather than protecting the rights of voters who history has shown us are in danger of losing their rights.
Now the fight to protect the rights of voters will have to be waged in courtrooms in order to rebuff ongoing attempts to deprive the vote to African-Americans and others. It is a perverse reading of our living Constitution.
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