How the Supreme Court Abolished Article V of the Constitution

Who needs amendments if the Lawless Five are on your side?
By Robert A.J. Gagnon
8.14.15

On July 31 at the American Bar Association’s International Human Rights Award Luncheon, former Justice John Paul Stevens declared that, while the Due Process Clause of the Fourteenth Amendment establishes a right to “gay marriage,” it does not protect an individual’s right to keep and bear arms.

Now when it comes to the issue of “gun rights” I have no personal dog in the hunt (so to speak). I’m not a gun owner. In most circumstances I wouldn’t recommend keeping a gun at home because I think statistically a gun kept at home is more likely to be used on someone in the home than on an intruder (though I wouldn’t want an intruder to know that I don’t have a gun at home).

Still, I marvel at Stevens’ ability to reject an application of the Fourteenth Amendment to a right clearly enumerated elsewhere in the Constitution (viz., “the right of the people to keep and bear arms” in the Second Amendment) while affirming its application to a supposed right not elsewhere even remotely alluded to in the Constitution (viz., the right of a person to marry a person of the same sex).

As Harvard-trained lawyer Brian Troyer commented, “You need look no farther to see that liberal jurisprudence has nothing to do with law or the Constitution except in the instrumental sense that when liberal judges pronounce their judgments on these issues they invoke the document as their excuse for imposing their personal policy preferences.”

In Obergefell v. Hodges Justice Kennedy, writing for the bare majority (Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan), based the case for the oxymoron that is “gay marriage” on the “due process” and “equal protection” clauses of the Fourteenth Amendment. So far-fetched was the connection that its effect was to dumb down intelligible words that have an historical context to the subjectivity of a Rorschach inkblot test or a reading of tea leaves.

The text of the Constitution now means anything that five SCOTUS justices want it to mean. That, in turn, has the quite serious effect not only of tarnishing the Court’s reputation as impartial jurists but also of eradicating Article V of the U.S. Constitution, which specifies how the Constitution may be amended: “The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution… which… shall be valid… as part of this Constitution, when ratified by the legislatures of three fourths of the several states….”
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A handful of unelected lawless justices have acted as legislators—worse still, as amenders and thus violators of the Constitution—by imposing their ideology on the Constitution. If they can legislate so brazenly from the bench, they can just as easily claim that the restriction of marriage to two persons or to non-kin is a deprivation “of life, liberty, or property, without due process of law” and a denial of “the equal protection of the laws.”