With Breath Abated ...

In about an hour or so, the Supremes will deliver their long awaited decision on gay marriage.

When this case first arose, I predicted that this Court – jealous of its title as the worst Court of last resort in the nation – will "discover" a fundamental right for gays to marry lurking in the provisions of a document adopted in 1947. After all, if the Massachusetts Supreme Court could find such a right in a document drafted in the 18th century, by men wearing powdered wigs, how much easier to is to discern such a "right" in a more contemporary document?

And considering that our Supreme Court invented a "right" to low and moderate income housing in every single municipality in the State, invented a "right" to massive state subsidy to urban school districts, invented a "right" to medicaid funding of abortion, invented a "right" for a minor to secure an abortion without telling her parents, inventing a "right" for gays to marriage seems entirely consistent with the past ukases.

Nonetheless, there is hope. No other Court has duplicated Massachusetts judicial cout d’etat, despite the fact that both ultra-liberal New York and California courts have passed on the subject.

The gay marriage issue demonstrates the fundamental distinction between "liberals" and "conservatives" – terms which should NEVER be applied to courts, but which always are – respecting the appropriate role of the judiciary. "Conservatives" believe that the Constitution means what it says; "liberals" believe it means what it ought to say. Put another way, "conservatives" measure a judicial outcome by its fealty to the text and history of the document the decision purports to interpret; : "liberals" measure a judicial outcome by its policy result.

Predicting the editorial positions of The New York Times and other media organs is easy. If plaintiffs win, and gay marriage becomes the law of the State, they will intone piously about the thoughtful opinion supporting their preferred result. If plaintiff’s lose, they will lament the inability of the Court to get beyond prejudice, etc. In short, from the perspective of the Left, the result matter, not how the result is achieved. The Right dissents, believing that, in a democracy, how a result comes about is often as important as the result itself.

No one can honestly argue that the 1947 New Jersey Constitution contains a single syllable which mandates state recognition of gay unions; it’s a patently silly argument. Constitutions are not ciphers, to be filled with such content as four judges of the highest State Court deem desirable. They are, instead, fundamental charters, the foundation of the positive law. They mean, today, precisely the same thing they meant when they were written and ratified. They do not change over time unless the people choose to change them. They contain no hidden rights. Nor are they the exclusive province of lawyers and judges; they were written for – and ratified by – the people. They mean what a person, untrained in the law, would take them to mean.

Hence, an advocate, asserting that a particular "right" is contained in the constitution, labors under the burden of identifying a specific clause which contains such a right. Recall, a constitution not only creates a government by defining its powers, it limits those powers as well, usually though specific restrictions on power and the inclusion of a Bill of Rights. That is, it takes certain subjects out of the democratic, political arena. Justifiably so. But in the absence of a specific constitutional provision (in a state constitution) restricting governmental action, the democratic process is the default setting. Put another way, unless the restriction on democratic self government is clear, the government may properly legislate on that subject.

Which brings us full circle. Not one word in the New Jersey Constitution even so much as remotely hints that the State may not restrict marriage as the Legislature sees fit.

Hence, however sincerely one might believe that the document ought to contain such a right, simple honesty compels the conclusion that the document, as presently written, does not.

No judicial candidate ought ever be confirmed if she cannot identify a decision, the outcome with which she agrees, but from which decision she would have dissented, on the grounds that same exceeds the proper scope of the judicial power.

Liberals and conservatives should be able to disagree on the merits of a particular policy, yet agree that same is not included as a constitutional imperative. That is, they should be able to agree that, in a democracy, the people, not judges, make policy.