James Madison proffered that when one branch of government exceeds the metes and bounds of its authority and sanctions something repugnant to a large portion of society it weakens the bands that holds that society together. I suggest that America is currently suffering that fate.

In the last half century the Supreme Court has overstepped its constitutional authority and has sanctioned scores of unlegislated statutes that have helped create a great division in our country. Recently I read an opinion piece by three lawyers that underscored how significantly this breach of power can harm our country.

Regarding the Obergefell v. Hodges decision, these constitutional lawyers said: “But this Court (SCOTUS) is not a legislature. Whether same-sex marriage is a good idea should be of no concern .... Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise ‘neither force nor will but merely judgment.’”

They further stated:”But this Court is not a legislature. The majority’s decision (Obergefell) is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent. The majority expressly disclaims judicial “caution” and omits even a pretense of humility, openly relying on its desire to remake society according to its own “new insight” into the “nature of injustice.”

Additionally they wrote: “As a result, the Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?”

Further: “The Court takes the extraordinary step of ordering every State to license and recognize same-sex marriage. Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening. ... Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.”

This indeed is what Madison foresaw. A significant portion of our country see SCOTUS, as it currently exists, as a threat to our very democracy. These three constitutional lawyers agree. I just took excerpts from their written opinion, but you can read the entire opinion yourself. You can google it under Obergefell v. Hodges: Chief Justice Roberts, with whom Justice Scalia and Justice Thomas joined.

James Kline


(20) comments


The dissenting opinion was just a right wingnut rant, as this LTE shows. What the majority did was order the states to follow Article IV Section 1 and the 14th Amendment for marriage licenses, something it should have done decades earlier.


This is the Wikipedia web site on Obergefell_v._Hodges. https://en.wikipedia.org/wiki/Obergefell_v._Hodges


I think that is the jsk relief on for his cut and paste rant


haydoke2 I was surprised it was printed. The dissent from Chief Justice Roberts, joined with Justice Thomas and Justice Scalia in Obergefell was a strong admonition. If I just written that people should read the dissent I doubt many would or would even know how to find where it is online I felt it was worth the "cut and paste" to print their words. There is little doubt that the future makeup of SCOTUS was a huge factor in the last election and will continue to be a factor in this upcoming election. Madison was right.


As if Jack Topchick doesn't do the same thing?


seriously, how did this get printed? even if 90% of it wasn't simply lifted from some other (not even cited) piece, it would still flatly fail as a cogent argument. if you're looking to prove that the court routinely oversteps their bounds, spending the entire thing whining about a single decision is a pretty poor way to go about it. my guess is you framed this as a court-wide admonishment because you figured "i don't think gay people should have equal rights" wouldn't play as well as an op-ed


"Recently I read an opinion piece by three lawyers....now here it is copied and pasted and branded as my own opinion."


When it comes to overstepping its powers, I think your discussing the wrong branch.




Didn't the majority of the "constitutional lawyers" on the court disagree with the three "constitutional" lawyers that Mr. Kline mentions? Is not the Supreme Court not the final arbitor in interpreting the constitution? I don't always agree with their rulings but do respect that they are often tasked with making difficult rulings. Seems to me that this is just something that the author of this letter doesn't personally like, hence the rant.


Jim, as a Republican you should be against control of people. .Now you want to control the sex preference of people. And don't give me bible quotes and support the likes of Donald Trump. Isn't he the one bragging about grabbing women? Wasn't Trump the one that has had many notorious affairs that he paid thousands of dollars to cover up? Where was religious beliefs then? Where was your column to the FNP? Do you know what that makes you?


Tangent Alert!


Sorry, Gabe, but when you aren't consistent, which Jim is not, you invite the comparisons.


gab, you don’t have to mention anything specifically to know who or what is being discussed. You learned that little dodge from CD. You use it frequently when you don’t have an answer. That or feigning anger, or both. Peace!


Gabe, are you questioning the reason(s) Jim wrote this article? It seems obvious it was done to suit Jim's religious beliefs.   We all know Jim is a strong supporter of Trump.  We know Trump has violated most religious beliefs about sex. such as grabbing women and have affairs with a number of women for which he paid money.  That brings up the question of why it never bothered Jim to support Trump, who obviously violates Jim's Evangelical beliefs on sexual conduct.  So, please tell us why it is so important to Jim to complain about the court's rulings and not calling out Trump for his notorious conduct.


That's an easy one Dick. Where did jsk mention Trump in this LTE? He was addressing the Supreme Court and what he believed was an overstep regarding a court decision, and this opinion was shared by three Supreme Court Justices in dissent. The LTE is actually lifted from that dissenting opinion. But you let the TDS get the best of you, with a response that was getting personal.


Cut and paste much?

Obadiah Plainsmen

Jim, I'll take it one step further and say that the SCOTUS has become the most dangerous branch of government. In another ruling that has gotten little attention (Mitchell v. Wisconsin , June 27, 2019 ) the Supreme Court simultaneously trampled State Sovereignty and the Fourth Amendment.

Comment deleted.
Obadiah Plainsmen

'unlegislated statute' is a law founded on custom and precedent. Due to its centuries-long evolution, common law proved to be a stable and slow-to-change legal system.


Sorry, I could not get passed, "James Madison proffered."

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