Footnote 7

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Justice Alito, in one footnote, underlines why the Federal judiciary has become an enemy to our most important civil right:  the right to govern ourselves:

The degree to which this question [the traditional view of marriage vs. the consent-based view] is intractable to typical judicial processes of decisionmaking was highlighted by the trial in Hollingsworth v. Perry. In that case, the trial judge, after receiving testimony from some expert witnesses, purported to make “findings of fact” on such questions as why marriage came to be, Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 958 (ND Cal. 2010) (finding of fact no. 27) (“Marriage between a man and a woman was traditionally organized based on presumptions of division of labor along gender lines. Men were seen as suited for certain types of work and women for others. Women were seen as suited to raise children and men were seen as suited to provide for the family”), what marriage is, id., at 961 (finding of fact no. 34) (“Marriage is the state recognition and approval of a couple’s choice to live with each other, to remain committed to one another and to form a household based on their own feelings about one another and to join in an economic partnership and support one another and any dependents”), and the effect legalizing same-sex marriage would have on opposite-sex marriage, id., at 972 (finding of fact no. 55)(“Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages”).

At times, the trial reached the heights of parody, as when the trial judge questioned his ability to take into account the views of great thinkers of the past because they were unavailable to testify in person in his courtroom. See 13 Tr. in No. C 09–2292 VRW (ND Cal.), pp. 3038–3039.

And, if this spectacle were not enough, some professors of constitutional law have argued that we are bound to accept the trial judge’s findings—including those on major philosophical questions and predictions about the future—unless they are “clearly erroneous.” [citations omitted] Only an arrogant legal culture that has lost all appreciation of its own limitations could take such a suggestion seriously.  (Emphasis added)

Power hungry lawyers in black robes, accountable to no one, are the exact opposite of how the Founding Fathers believed their new country would be governed.  Abraham Lincoln, recalling the Dred Scott decision, addressed this issue head on in his first inaugural address on March 4, 1861:

I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by other departments of the government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.

Lincoln’s warning has become prophecy.

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  1. Well, if we must have judicial tyrants, I pick Justice Alito for Supreme Leader. Excellent footnote. How is a prediction of the future of marriage a “finding of fact?”

  2. I went to Temple Law and found it disturbing that conservatives were so easy to pick out. The contrast in language and thinking between the distinct minority conservative student and the majority progressives was unsettling in the first year of school.

    Courses like business and tax law are driven by fairly neutral concepts and most of my professors were adjunct, real world lawyers. It was easy to stay on point and hard to stray into progressive turf. However, family law, con law, and civil rights law are subjects dominated by the Left and taught by professors whose reputation is built by their having clerked for a judge and maintained by their law articles.

    For most students, the transition from high school, to college, to law school is seamless. Accepting what you are told, memorizing the phrases the teacher repeats often and learning the materials as written is enough. Thinking is not a skill taught, expected, or desired by teachers at any of those levels. So, if you go straight to law school after college, your mind will be twisted into a progressive pretzel whether you went to law school as a liberal or not.

    Conservatives in my class were all “non-traditional” students with careers and, in many cases, family. Most were middle-of-the-pack students, devoting just enough time to studies to get by. We added little to class though because the classes that were grounded in business don’t draw on experience and the ones driven by opinion were openly hostile to everything our experience taught us was true.

    We sat left middle or right center in every class, exasperated sighs haphazardly interrupting the unceasing chatter of self-congratulating flatulance that fills a law school classroom during a con-law class or yet another dreary, professorial tirade about the necessity of modern divorce law as a remedy to thousands of years of women’s oppression. Actual education happened from time to time too of course. I think fondly of Professor Mikochic as a First Amendment professor for example. He entirely reordered my thinking about Free Speech because he assigned copious, carefully ordered readings and drew a map between them that was inspiring and eye-opening. Most classes were not thus

    Footnot 7, to my mind is the natural and inevitable outcome of the dilution of the law. Too many law schools and students spreads the skilled professors out and brings up hacks who shouldn’t be teaching. It also brings too many students in who shouldn’t be there because they lack the skill and/or desire to be a lawyer and because they lack the preparation for becoming a good lawyer.

    If we don’t fix the law as a profession things will only get worse and I see no evidence that our profession is prepared to deal with the rotten tendrils of the rotten root that played itself out this week.

  3. It is worth noting that neither the Law of 9 November 1791, which introduced mandatory civil marriage, nor the Code Napoléon contain any definition of marriage. However, generations of jurists have found a functional definition in Article 312, “The child conceived or born in marriage has the husband for father,” including the four most authoritative commentators on the Civil Code, Demolombe (1804–1887), Guillouard (1845-1925), Gaudemet (1908-2001) and Carbonnier (1908–2003), long before the question of same-sex marriage was agitated.

    In 1998, a colloquium of 154 Professors of Civil Law, including Philippe Malaurie, Alain Sériaux, and Catherine Labrusse-Riou unanimously endorsed this interpretation of the Civil Code. This led to the introduction of civil unions (PACS) for same-sex and opposite-sex couples in the following year.

    Filiation has never been regarded as other than central to civil marriage, ever since the Roman jurist, Paulus wrote “.pater vero is est, quem nuptiae demonstrant.” (Marriage points out the father) [Dig. 2, 4, 5; 1]

  4. The definition of marriage is: “two become one” in body and soul, possible only when the two follow the laws of nature and nature’s God. Even “civil unions” lack , are deprived of physical and spiritual “union”. Stripping our language of meaning and emasculating our civil rights, the devil is the only one who cannot become one with another soul through covenant, every other person indeed can. Jesus Christ is one with the Blessed Trinity. Man is one with a woman through covenant. The devil cannot become one with a lie. The devil is duplicitous, already lying out of both sides of his mouth. That some gay marriages have been recorded only means that some citizens have succumb to a lie.

  5. God gives authority to the government to govern the people. Jesus said to Pilate “you would have no authority over me if it had not been given to you from above.” A people claiming authority over the government is a people opposing God. The people are subject to the state. The people have the right to resist state action that is contrary to their duties to God. A people that claim the authority of government comes from the people is a bit like the children claiming that their parents authority to govern them comes from the children. Since authority comes from God and not the people if the majority of the people wanted gay marriage, the government could not be required to legalize same sex marriage.

  6. “The people are subject to the state”

    Rubbish on stilts. States come about in a myriad of ways and have an enormous range of how they are constituted. I doubt seriously if God intended us to give blind obedience to these creations of Man except when they happen to run afoul of the Catholic faith. I believe like Mr. Jefferson that our rights come from God. As to the State, it usually has a much less exalted pedigree.

    “10 So Samuel told all the words of the Lord to the people who asked him for a king. 11 And he said, “This will be the behavior of the king who will reign over you: He will take your sons and appoint them for his own chariots and to be his horsemen, and some will run before his chariots. 12 He will appoint captains over his thousands and captains over his fifties, will set some to plow his ground and reap his harvest, and some to make his weapons of war and equipment for his chariots. 13 He will take your daughters to be perfumers, cooks, and bakers. 14 And he will take the best of your fields, your vineyards, and your olive groves, and give them to his servants. 15 He will take a tenth of your grain and your vintage, and give it to his officers and servants. 16 And he will take your male servants, your female servants, your finest young men,[a] and your donkeys, and put them to his work. 17 He will take a tenth of your sheep. And you will be his servants. 18 And you will cry out in that day because of your king whom you have chosen for yourselves, and the Lord will not hear you in that day.”

    19 Nevertheless the people refused to obey the voice of Samuel; and they said, “No, but we will have a king over us, 20 that we also may be like all the nations, and that our king may judge us and go out before us and fight our battles.”

    21 And Samuel heard all the words of the people, and he repeated them in the hearing of the Lord. 22 So the Lord said to Samuel, “Heed their voice, and make them a king.”

    States are a necessary evil due to the sad fact that men are not angels, but there is nothing divine in their origins or operations. What is divine is the fact that Man was made in the image of God and that fact alone limits, or rather should limit, the power of the State.

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