This commentary originally appeared in Real Clear Policy on July 2, 2015.
To the list of losers in the Obergefell case — the Constitution, democracy, and religious liberty — we could come in time to add another: the Supreme Court itself. In the process, the same-sex-marriage decision could become a powerful 2016 campaign issue.
The Court was labeled by Alexander Hamilton "the least dangerous" branch of government because it also is the least democratic. Federal judges do not run for office, and their tenure generally is for life. This is required to give them the space and time to detect and overturn unconstitutional enactments by the other two, popularly elected, branches. That is to say, the undemocratic character of the Court is justified by its commitment to defend, not its own intentions, but only those clearly found in the Constitution itself. Everyday national legislation requires the approval of only a simple majority (50 percent plus one) of legislators. Such legislation can never claim to trump the Constitution, which was ratified by a supermajority. The Constitution provides the means for its own transformation, the amendment process, which requires also requires a supermajority.
Simply put, because of its undemocratic character, the Court's powers are limited by the Constitution to those deemed "least dangerous." As Hamilton observed, the Constitution provides the Court "neither force nor will, but merely judgment." Not any judgment will suffice, but only dispassionate, nonpartisan reasoning about the Constitution's intentions. Under the doctrine of "judicial self-restraint," it is only by restraining itself to upholding the Constitution that the Court can justify its undemocratic character to a democratic people.
Forget all that now. The modern Court — not only here in Obergefell, but for some time — has too often abandoned judicial self-restraint in favor of results-oriented jurisprudence. Which results, and whose? Not those found in the Constitution or in the will of the people's representatives, but those currently favored by a majority of nine unelected judges. How did we get here? How can today's Court blithely encroach on the constitutionally protected police powers of the states, which include all laws relating to health and morals?
Clearly, a good deal of America's movement toward centralized government owes to the demands of an ever-more-sophisticated modern economy and advances in communications technology. However, no less responsible for the blows struck at federalism (protected by the Tenth Amendment) has been the "rights explosion." With the Fourteenth Amendment serving, contrary to its framers' intent, as the constitutional conduit by which the bulk of the Bill of Rights' provisions (along with a growing number of created rights) has trickled to the states, uniformity necessarily has emerged where federalism-created diversity previously prevailed.
Driving this judicial revolution is the conviction that threats to civil liberty posed by states, communities, and private associations outweigh the benefits of the civic education that participation at these levels provides. Obergefell claims to find a Fourteenth Amendment right to same-sex marriage, although even a glance at the debates over ratification of the amendment shows that its focus was solely to ensure that states would not violate the rights of the newly freed slaves. Same-sex marriage, practiced nowhere at the time, was never an object of the amendment. This massive fact did not hinder a reckless Court majority (five of its nine members) from subverting rather than interpreting the Constitution through the imposition of what it calls its "reasoned judgment."
Thomas Jefferson anticipated this. The Declaration of Independence's author appears prescient in his warnings of coming judicial "despotism." Justice Antonin Scalia's Obergefell dissent correctly labels the Court's abandonment of the Constitution a "threat to democracy," but this did not occur, as he argues, through a "judicial Putsch." The Court has not imposed its will on a powerless legislature. Congress has all-too-gladly handed its power to the federal courts. Why?
The overwhelming majority of legislators operate on the basis of the "electoral imperative," which mandates that they avoid principled conflict whenever possible in order to enhance their reelection prospects. Disputes that are deeply political also most antagonize a good number of a legislator's constituents; so, too many politicians retreat to "the-Court-has-spoken" dodge.
In the face of this abdication by their elected representatives, how have voters responded? By reelecting them regularly.
What if Congress reclaimed its constitutional powers? How might it do this after the Court has spoken? One answer is provided in the Constitution itself. Article III stipulates that the Supreme Court has "original jurisdiction" in a limited number of cases. The rest of its domain falls under its "appellate jurisdiction." Here the Constitution adds a crucial qualification. The Court's appellate jurisdiction can be limited by those "Exceptions, and under such Regulations as the Congress shall make."
Through the "Exceptions and Regulations Clause," Congress can remove whole classes of cases from the Court's jurisdiction. Through a simple majority vote, Congress could today take the Court out of the marriage issue, returning the issue's deliberation to its proper place, the 50 states. Although the current president would veto such a measure, his successor could prove friendlier to restoring the states' constitutional powers.
Some find in this prospect of congressional revitalization a potential campaign issue for 2016. They envision a 2016 version of the GOP's 1994 Contract With America, through which Republicans nationalized the local congressional races, in the process recapturing the House for the first time since 1954. If an "Exceptions and Regulations" national movement arose among pro-federalism voters, the electoral imperative, which previously drove legislators to cede their power to courts, could incentivize them to relocate their spines and, with them, the rule of law.
Of course, should such a movement gain traction, there would be the inevitable legal challenges to Congress's power to invoke this clause over same-sex marriage. No matter. At the very least, such a movement, occurring in a presidential election year, would serve powerfully to remind the Court of what the Obergefell majority apparently has forgotten — that its power ultimately depends on the people's representatives.
History suggests that such a reminder could have its intended effect. After winning reelection in 1936, Franklin Roosevelt proposed his "Court-packing" scheme, under which Congress would use its constitutional power over the size of the Court's membership to increase it from nine to fifteen. FDR intended then to "pack" the Court with six new members favorable to his New Deal legislation, which the Court had largely struck down during his first term. The proposal failed. But it also succeeded — wildly — in moving the Court to thereafter approve New Deal legislation. The Court had been reminded that, under the Constitution, it has neither "force nor will, but merely judgment."
Court critics suggest that another benefit of such a national movement would be the education it would provide American voters, who can be expected never to have heard of the Exceptions and Regulations Clause. This is not their fault. U.S. Department of Education statistics show that, today, roughly two out of every three college students graduate without ever having taken even one course in American government. Such a popular movement could fill the civic-education vacuum left by our universities' abdication of this vital task.
But will Congress act in accord with the powers and duties provided it under the Constitution? History gives us few reasons for confidence. Congress has tried and failed before to pass "Exceptions and Regulations" bills. But the times may be changing, and Obergefell, contrary to its intentions, could spark the beginning of a democratic renaissance.
However, if legislators use Obergefell only to beat their breasts (and fill their campaign coffers), without employing the legitimate constitutional means at their disposal — and if like-minded voters let them get away with it (again) — then, finally, we may get the government Jefferson feared: judicial despotism.
Thomas K. Lindsay directs the Centers for Tenth Amendment Action and Higher Education at the Texas Public Policy Foundation and is editor of SeeThruEdu.com. He was deputy chairman of the National Endowment for the Humanities under George W. Bush.