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> On Nov 3, 2016, at 8:55 PM, Finnegan Biden <FBiden17@sidwell.edu> wrote:
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> In Federalist Essay 78, Alexander Hamilton argued that the Supreme Court existed for two fundamental reasons, the first being the need to enforce laws as laid out in the U.S. Constitution, and the second being the need to protect against the will of democracy. For over 200 years, the Supreme Court of the United States has passed judgment in the most important and consequential matters of law with at least the intent of preserving and protecting the Constitution. The Supreme Court as most often represented by nine individual Justices were granted enormous power which has greatly influenced our countries history. Through votes on cases determining the constitutionality of the Fourteenth Amendment, abortion rights, freedom of speech, and many more "rights" we now consider fundamental the Court has shaped the arc of justice in the United States . Over the course of two centuries and thousands of cases, the Supreme Court has evolved into arguably the most consequential branch of government regardless of Hamilton's argument in Federalist No. 78: that the Court "...has no influence over either the sword or the purse" and has no "FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments." In recent years, however, many judicial theorists and even Justices themselves have argued that the Supreme Court’s expansion of power is unconstitutional and encroaches upon the boundaries laid out to them by the Founders.
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> The most recent example of this debate is portrayed through the Obergefell v. Hodges case, which ultimately granted the right of marriage to individuals of the same sex in a vote of 5-4. The Court's majority opinion, authored by Justice Anthony Kennedy, validated it's decision based on the ideals of our “living constitution.” The four justices joining in Justice Kennedy's majority opinion argued that the right to same sex marriage was an individual liberty, and therefor should not be discriminated against. Contrarily, the dissenting opinion authored by Chief Justice John Roberts argued that the decision was unconstitutional in almost every aspect. The debate within this singular decision portrays an ongoing debate among justices and legal scholars alike: how should the Constitution be interpreted? This question will likely never be answered to either sides content, however, two clear arguments are presented within both Chief Justice Roberts' and Justice Kennedy’s opinions in Obergefell v. Hodges.
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> Justice Kennedy, who voted on the majority side claimed that the decision was based on this idea of a living Constitution. It is a more liberal approach in interpreting our 200 years, but it makes sense, we shouldn’t blindly trust our two century-old Constitution, rather our understanding of it should evolve. Justice Kennedy said that our founders “entrusted to future generations a charter protecting the rights of all persons to enjoy liberty as we learn its meaning.” The key here to Justice Kennedy and those that came before him is that "liberty's meaning" is never static and that as we evolve as a nation so does our understanding of what constitutes freedom and justice.
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> Chief Justice Roberts, who authored the dissenting argument, had several good points as to why he voted in opposition to same-sex marriage. His argument centered on the idea that the Judicial branch isn’t the Legislative branch, rather judges are appointed figures who are given the power to judge laws, not make them. In his dissent Justice Roberts deemed the majority opinion unconstitutional in almost every aspect stating: “The Court today not only overlooks our country’s entire history and tradition but actively repudiates it, preferring to live only in the heady days of the here and now.” Foreshadowing, according to Justice Scalia "(a) system of government that makes the People subordinate to a committee of nine unelected lawyers.”
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> Both sides make clever arguments, but Chief Justice Roberts ultimately has a more convincing case. His contention agrees with the Constitution, Hamilton, and Chief Justice Marshall. In the Federalist Essay 78 Hamilton proclaims that the court shall exercise “neither force nor will, but merely judgment.” In deciding to legalize same-sex marriage the Justices (who are unelected and unaccountable) forced their opinion, whether it was right or wrong, upon the people by declaring it's prohibition unconstitutional. Roberts argues that our Founders “would never have imagined yielding that right on a question of social policy to unaccountable and elected judges.” He is in fact correct, our founders built this country on principles which secured a democratic republic- not one that left major decisions in the hands of unelected officials who can not be held accountable.
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> Despite the dissents strong case, the majority obviously had more votes and ultimately decided the outcome. Their argument was based around the idea of protecting individual rights laid out to us in the Bill of Rights, the Fourteenth and fifteenth amendment, and so much more. They believe it is their duty to secure freedom, which is ensured to the American people within the Constitution. In response to Roberts argument that the Judicial branch is to judge laws, not make them, the majority proclaimed that the “dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right.” This point is valid, the Constitution and the Judicial branch were formed in order to protect fundamental rights, especially the fundamental rights of minorities. However, how should one define what a fundamental right is? The answer is inherently biased. Fundamental rights may vary among the population, why should our Supreme Court Justices, nine unelected officials be the one’s who decide them? As Justice Scalia so colorfully stated in his dissent in Obergefell v. Hodges: “Rights, (according to the majority opinion) we are told, can 'rise … from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.' (Huh? How can a better informed understanding of how constitutional imperatives [whatever that means] define [whatever that means] an urgent liberty [never mind], give birth to a right?).” Justice Scalia seems to be arguing that Hamilton had it wrong. That in fact "liberty" does have much to fear from "the judiciary alone." (Federalist # 78) Kennedy seemingly unconstitutionally and undemocratically admits that “fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.” This brings us back to Hamilton’s philosophy on why the Constitution exists: to protect against the will of democracy. If the Justices didn’t exist, then the minority would constantly be treated unfairly and subjected to the will of the majority. However distasteful and even bigoted the notion of reserving a classification or definition of what marriage is may seem to our 21st century minds the Minority in question here is not those in same sex relationships but those who believe marriage should be limited to one man one woman.
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> CONCLUSION.
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> <Take home essay 3 draft 2.docx