Parallel cases: Abraham Lincoln and Ted Cruz on judicial supremacy

Another reason to like Ted Cruz: No other presidential candidate has articulated the same basic truth about the Supreme Court's recent dictum in favor of the paraphilia du jour.

When the Supreme Court decides a case, the parties of that case are bound to that decision, as are those in parallel circumstances. But the Court cannot establish law by extending beyond that strict limit whatever "principle" they've suddenly created.

The current struggle between the friends of the Constitution and those who despise it and them will end in one of two places: either the reasonable and the decent will assert themselves and reestablish the rule of law, common sense, and basic decency, or there will be no barriers to any deviant impulse's being enshrined as "law."

From here:

Clearly anyone seeking a same-sex marriage license in a state who was not party to the Obergefell suit falls under what Lincoln would call a “parallel case.” But what about someone who runs to federal court or a state marriage license bureau, and holds up Obergefell’s doctrine of “dignity” on behalf of, say, polygamy? Must the court or marriage license bureau shrug their shoulders and say, “Well—I guess so”?

When Lincoln arrived in the White House in 1861, he found two executive branch decisions to which he objected. A free black man in Boston had applied to the State Department for a passport to travel to France, which the State Department had denied on the ground that the Supreme Court, in Dred Scott, had declared that blacks could not be citizens because blacks “had no rights which the white man was bound to respect.” And in Philadelphia, a free black man had applied to the Patent Office for an invention, and been denied on the same ground. Lincoln ordered both decisions reversed.

I often tell this story to my students in classes on the Constitution, with the question appended: “Was Lincoln defying the Supreme Court? Did he act unconstitutionally?” It is amazing—and depressing—that the overwhelming majority of my students get the answer wrong. Such is an example of how deep the idea of judicial supremacy—“the Constitution is what the Supreme Court says it is,” as the Court self-congratulated in Cooper v. Aaron—has crept into the public mind today.

Look again at Lincoln’s careful language in that passage above. He is saying that the reasoning of Dred Scott must be respected as to the parties of that particular case and in parallel cases (i.e., a slave owner who brings his slave into a free state, as Dred Scott’s owner had done). But in his decision to reverse the executive branch decisions supposedly based on Dred Scott in circumstances that were not parallel—both were free blacks in free states, with no one asserting ownership claims to them—Lincoln was asserting that the executive branch was not obligated to extend the principle of the Dred Scott case more broadly. The Constitution belongs to all three branches of government, each of which may assert its constitutional prerogatives in its own sphere—pending a legal challenge in the courts that concludes otherwise.

Antonin Scalia obliterates the perverse Left's black-robed tyranny

The obliteration of Marriage, the death of the Constitution, and the Abolition of Man.

You can sit in a garage and call yourself a car, but that doesn't mean that you're a car.

Marriage is and can be only one man and one woman; one man's urge to insert himself into another man's digestive system is not "love," and it can never be marriage.

Sodomy-as-marriage is a delusion, a fantasy, a violation of Nature, and a (temporarily) successful attempt to use the force of law to coerce the endorsement of perversion. (Or at least, intimidate its critics.)

This is the abolition of Marriage, for there is no legally, logically, practically, nor morally consistent way to endorse homosexual unions and still deny "the right to love," "due process," and "equality" to practitioners of the other paraphilias.

And just wait; Islam is licking its lips in anticipation of its chance to argue in favor of Muhammad-endorsed and Allah-ordained polygyny and child sex slavery.

Justice Antonin Scalia obliterates the perverse Left's judicial tyranny, from Power Line:

The substance of today’s decree is not of immense personal importance to me. The law can recognize as marriage whatever sexual attachments and living arrangements it wishes, and can accord them favorable civil consequences, from tax treatment to rights of inheritance.

Those civil consequences—and the public approval that conferring the name of marriage evidences—can perhaps have adverse social effects, but no more adverse than the effects of many other controversial laws. So it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact— and the furthest extension one can even imagine—of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.

[...]

[W]hat really astounds is the hubris reflected in today’s judicial Putsch. The five Justices who compose today’s majority are entirely comfortable concluding that every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’ permitting of same-sex marriages in 2003. They have discovered in the Fourteenth Amendment a “fundamental right” overlooked by every person alive at the time of ratification, and almost everyone else in the time since. They see what lesser legal minds—minds like Thomas Cooley, John Marshall Harlan, Oliver Wendell Holmes, Jr., Learned Hand, Louis Brandeis, William Howard Taft, Benjamin Cardozo, Hugo Black, Felix Frankfurter, Robert Jackson, and Henry Friendly—could not.

They are certain that the People ratified the Fourteenth Amendment to bestow on them the power to remove questions from the democratic process when that is called for by their “reasoned judgment.” These Justices know that limiting marriage to one man and one woman is contrary to reason; they know that an institution as old as government itself, and accepted by every nation in history until 15 years ago, cannot possibly be supported by anything other than ignorance or bigotry. And they are willing to say that any citizen who does not agree with that, who adheres to what was, until 15 years ago, the unanimous judgment of all generations and all societies, stands against the Constitution.

The opinion is couched in a style that is as pretentious as its content is egotistic. It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the Court to do so.

Of course the opinion’s showy profundities are often profoundly incoherent. “The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.” (Really? Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie. Expression, sure enough, is a freedom, but anyone in a long-lasting marriage will attest that that happy state constricts, rather than expands, what one can prudently say.)

Rights, we are told, can “rise . . . from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.” (Huh? How can a better informed understanding of how constitutional imperatives [whatever that means] define [whatever that means] an urgent liberty [never mind], give birth to a right?) And we are told that, “[i]n any particular case,” either the Equal Protection or Due Process Clause “may be thought to capture the essence of [a] right in a more accurate and comprehensive way,” than the other, “even as the two Clauses may converge in the identification and definition of the right.” (What say? What possible “essence” does substantive due process “capture” in an “accurate and comprehensive way”? It stands for nothing whatever, except those freedoms and entitlements that this Court really likes. And the Equal Protection Clause, as employed today, identifies nothing except a difference in treatment that this Court really dislikes. Hardly a distillation of essence. If the opinion is correct that the two clauses “converge in the identification and definition of [a] right,” that is only because the majority’s likes and dislikes are predictably compatible.)

I could go on. The world does not expect logic and precision in poetry or inspirational pop-philosophy; it demands them in the law. The stuff contained in today’s opinion has to diminish this Court’s reputation for clear thinking and sober analysis.

Scott Johnson notes Justice Scalia’s footnote 22:

If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,” I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.

The Republic is dead.

Elected tyrants strengthen their Court of Last Resort

What do you do when reasonable people reject your efforts to enact into law your suicidal and perverse policies? Implement them by judicial fiat! B. Hussein and his Democrat persons of hench have strengthened the statists by confirming Elena Kagan to the Supreme Court. Paul Mirengoff explains why this is another cement block hanging from Harrison Bergeron:

"To get a sense of what it means, think of the three big constitutional decisions rendered by district courts in the past week or two. They are: (1) Judge Bolton's grant of a preliminary injunction blocking key portions of Arizona's immigration enforcement law, (2) Judge Hudson's ruling permitting the Commonwealth of Virginia to proceed with its lawsuit challenging the portion of Obamacare that requires individuals to purchase insurance, and (3) Judge Walker's outrageous ruling that California's Proposition 8, which bans gay marriage, is unconstitutional.

If these matters reach the Supreme Court, as seems likely, I have no doubt that Kagan will side with those who challenge the Arizona immigration law and Proposition 8, and with the government in the case of Virginia's challenge to Obama care. But that's just the tip of the iceberg -- probably less than one year's worth of bad jurisprudence. Kagan is only 50 years old, so we can expect at least 25 years of the same sort of leftist assault on our traditional freedoms and the rights of our states.

The only way Kagan's confirmation doesn't become a disaster is if we are able to elect Republicans presidents pretty consistently during the next 22 years or so, starting in 2012, and thus can keep Kagan busy writing dissents."

No more excuses, folks. It's time to restore the Republic.