The Founders of our nation gave us constitutional liberty. In the late 19th century, through the 20th century and into the 21st century, Progressives have given us liberty with the U.S. Constitution.
The former gives freedom from government intrusion; the latter expands government intrusion.
This former views the Constitution as legal document with prescribed written means for change; the latter views the Constitution as a living document susceptible to the whims of those currently in power.
The U.S. Supreme Court’s 2015 decision on same-sex marriage, Obergefell v. Hodges, affords a glimpse at the diverging viewpoints. In this 5-4 opinion, many are familiar with the majority’s decision holding that “same-sex couples may exercise the fundamental right to marry.”
Fewer Americans probably are aware of comments in the dissenting opinions in that case that shine light on these significant contrasts.
Consider the dissent of Justice Scalia. “It is of overwhelming importance…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.
In his dissent, Justice Thomas wrote, “The Court’s decision today is at odds not only with the Constitution, but with the principles upon which our Nation was built. Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits.”
The Framers created our Constitution to preserve that understanding of liberty. Yet the majority invokes our Constitution in the name of a “liberty” that the Framers would not have recognized, to the detriment of the liberty they sought to protect. Along the way, it rejects the idea—captured in our Declaration of Independence—that human dignity is innate and suggests instead that it comes from the Government.
He further foresaw that “The majority’s inversion of the original meaning of liberty will likely cause collateral damage to other aspects of our constitutional order that protect liberty.”
As Justice Thomas foresaw, that collateral damage has already taken a toll, particularly on religious liberty.
May we use the wisdom of Justice Scalia and Justice Thomas to combat the assertion of liberty with the Constitution in favor or genuine constitutional liberty.