Regardless of where you stand on same sex marriage, ObamaCare, or the very idea of “unintended discrimination,” the process of how we interpret and apply law — and what counts as liberty, in the sense it was intended by the founders and framers and to the extent it exists in a representative republic — is crucial to the protection of the individual and a the frustration of the state, whose natural impulse is to forever increase it’s own power. It should be of no debate that a country forged in revolution against a faraway King and whose political and social ideas are expressed in the Declaration of Independence, was born of a distrust of centralized authority and a desire for liberty, which was always defined by negative rights. Separation of powers was a key element to the genius of our Constitution, a crucial check on the coalescing of power around a single unified entity. And yet what we have today is an Executive that makes law; a Legisl ative branch that makes law; an administrative state that makes law; and a SCOTUS that makes law.
That’s about as unified as one centralized federal power can get.
Proper interpretation of law — and adherence to the process, when it is joined with a clear idea of what it is we think we’re doing when we interpret — is one of the foremost safeguards of liberty, in that it assures the stability of law and in so doing allows for equality before it. Without a fixed and repeatable process, the rule of law is surrendered to the rule of caprice, the rule of whim, the balk assertion of power — all carefully camouflaged as legitimate “interpretation.” It is not: in the context of legal hermeneutics, certain conventions apply. First, the court, in order to even begin the process of interpretation, has to acknowledge that the text presented them was intended; these seems fairly self-evident, but too many ideas of interpretive theory would try to kill off the author(s) in order to claim power of the meaning of a text for themselves. Second, because we are dealing with law (and not, say, Joyce’s Ulyss es), legal convention requires that the texts produced by lawmakers and handed over to courts for application and interpretation must be as clear as possible in their practical expressions. That is to say, because we want laws to be understood, they need be written in such a way that the intent behind them is as clear and unambiguous as it can be made to be. This is how convention serves intention, and why we use convention as one of the tools to determine intent. In law, that convention is crucial: because the force of law carries with it the potential for fines, imprisonment, and even death in some instances, we insist that it be clear and easily determinable. Bad law that isn’t clear should be returned to the legislative branch for revision.
Unfortunately, we now have courts that believe it is their job to rewrite the bad text of the legislature to comport with what they claim is their intent. But if a court is aware of a legislative intent that doesn’t appear in the text of the law in any comprehensible way, they aren’t “interpreting” it at all. They are laying claim to knowing what it means regardless of how someone not privy to that hidden and unsignaled intent cannot possibly be expected to be. Whether it’s turning “penalty” into “tax” or turning “by the state” into “by the state and also the federal government and IRS,” these acts of judicial presumption are arrogant and immoral. No one would ever allow that a court can write the law as it so sees fit, even in contradistinction to the legislative branch who wrote it.” And yet when they do so, but do so using the emptied signifiers left them in a text whose intent they e ither dismiss, invent, or claim special knowledge of, this is precisely what they are doing: they are rewriting law, creating new texts from the ones presented them, and then attributing their *own* superlegislative intentions back to lawmakers, whom they claim to be “helping” by rewriting statute.
As Justice Scalia points out in his dissent to Obergfell, Anthony Kennedy simply does not have the authority to determine “settled law” for 300+ million people using “it just feels right” and “it’s time” as a legal and coherent jurisprudential rationale. The State does not grant one “dignity,” nor should it, and Justice Kennedy doesn’t get to find the (surreal) “right” for people not to be lonely. He likewise doesn’t get to decide, as he did in the housing decision, that organic statistical dispersion is somehow de facto proof of “unintended prejudice” — a ruling that suggests that whites, or any wealthy people who, because of their wealth, must be *kinda* white, are necessarily bigoted *even if they don’t know it,* all because they have more than someone else, and as a result live in areas where those without the means typically do not. This “disparate impact̶ 1; racialism is a recipe for the very dangerous and illiberal “equality of outcome” proposition used by socialists everywhere (w the political leadership exempting itself from the consequences, naturally). Not to mention, it is based on fundamental inequality before the law, with certain groups granted special “rights” it is not the Court’s place to grant.
Too, John Roberts doesn’t get to pretend he can see the secret intent of a statute passed by lawmakers who didn’t bother reading the thing that, on practical perusal, *explicitly signals an opposing intent* (one that was backed up by clips of Jonathan Gruber bragging about how state exchanges were intended to drag Governors who wanted federal funds along, kicking and screaming if needs be).
Regardless of what would-be philosopher kings and queens decree from their high benches, the US was designed as a representative republic, and the Constitution gives the federal government limited powers, leaving the rest to the several states and to the people, who are meant to self govern within the context of a civil society. Using Civil War amendments (ironic, given that, as amendments, they were ratified by the states — not thrust upon an unwilling populace by a single vote of the Supreme Court) to crack the 150-year-old “right” for the federal government to define marriage, begs credulity: the people who wrote and ratified those amendments had in mind a specific use for them; they never intended to give a future Court leave to empty them of their context and specifics and expand them to usurp powers that are more properly left to the people.
When we allow Courts to claim that their rewriting of law is in fact an expansive “interpretation” of law, we are giving in to a linguistically incoherent idea of what it means to interpret and turning the process into a will to power. Kennedy disregarded the intent of the 14th Amendment, clear not only in its plain text and historical context but also in its legislative history. He has effectively deconstructed what in our history “liberty” has meant (see Thomas’ dissent in SSM case) and rewritten that entire history, deconstructing it and inverting it, much like our culture has done w terms like “tolerance,” which no longer means a right to offend but instead has become a right not to encounter offense, no matter how unintentional that offense may be.
Ted Cruz puts it very succinctly when he notes “Not only are the Court's opinions untethered to reason and logic, they are also alien to our constitutional system of limited and divided government. By redefining the meaning of common words, and redesigning the most basic human institutions, this Court has crossed from the realm of activism into the arena of oligarchy. (http://www.nationalreview.com/article/420409/ted-cruz-supreme-court-constitutional-amendment).
Arbitrary law brings with it the necessity of police state, because to enforce unequal law one must rely on oppression. On tyranny. Messy “interpretive” thinking creates the kind of consequences we’ll soon see, when same-sex couples begin suing religious institutions who refuse to perform their ceremonies. There’s a REASON Hillary Clinton’s campaign wouldn’t come out and say that the tax exempt status of a church not comporting with the Unites States of Anthony Kennedy may be in jeopardy.
Incidentally, you’ll note that I don’t mention the liberal justices. And that’s because their votes were pre-ordained. No one expected any different. Which is as much of a tell in re: our modern justice system as is any other I can think of.
We live in a post-constitutional period. And those currently celebrating the trees are too blind and overcome with superficial bliss to see that they are actually wandering deeper into a forest that will eventually envelope them, and from which they will never be able to find their way out.