The Supreme Court: The Final Word? (Also, Lincoln Talks Housebuilding)

The US Supreme Court normally receives far less attention than the other two branches of the Federal government, except of course when it issues highly significant or controversial decisions. Such was certainly the case this week with the Court’s rulings on the Affordable Care Act (“Obamacare”) and, most especially, same-sex marriage.

Now that the Supreme Court has spoken on these issues, this means that they’ve been settled forever, right? Yes and no!

On the one hand, a Supreme Court decision cannot be appealed to a higher court, and so in this sense its rulings are final. On the other hand, Supreme Court decisions are not always the final word, mostly because the power ultimately resides in the will of the people, not in the government. The legislative body could pass a new law which addresses the issues that the Court found unconstitutional, a constitutional amendment could change the underlying basis of the decision, or the Supreme Court itself could reverse the decision in a later case. While not common, each of these has happened in the past.

In fact, the XIV Amendment to the Constitution, which was the basis for the Supreme Court’s same-sex marriage decision yesterday, is itself a prime example of how a Court ruling is sometimes not the final word!

Among the many factors contributing to the Civil War, one was the feeling among northerners that a “slave conspiracy” had infiltrated the Federal government with the intention of making slavery legal nationwide. This was fueled especially by the southern-dominated Supreme Court, which in 1857 decided in Dred Scott v. Sandford that Congress had no authority to exclude slavery from the territories, and also that blacks, even free ones, were not citizens and were therefore not afforded the protections of the Constitution. The next logical step of the Court would be to rule that no state could prohibit slavery within its boundaries. Before that could happen, however, the Civil War would break out.

Abraham Lincoln gave a humorous illustration of how pro-slavery forces had intentionally and concertedly enacted a framework of laws in order to extend slavery into the territories in his famous “House Divided” speech in 1858, when he was facing incumbent Senator Stephen Douglas:

“We cannot absolutely know that all these exact adaptations are the result of preconcert. But when we see a lot of framed timbers, different portions of which we know have been gotten out at different times and places, and by different workmen – Stephen, Franklin, Roger, and James, for instance – and when we see these timbers joined together, and see they exactly matte the frame of a house or a mill, all the tenons and mortices exactly fitting, and all the lengths and proportions of the different pieces exactly adapted to their respective places, and not a piece too many or too few, – not omitting even scaffolding – or, if a single piece be lacking, we see the place in the frame exactly fitted and prepared yet to bring such piece in – in such a case we find it impossible not to believe that Stephen and Franklin and Roger and James all understood one another from the beginning and all worked upon a common plan or draft drawn up before the first blow was struck.”

By using just first names, Lincoln was by no means trying to protect the guilty: ‘Stephen’ was quite obviously his rival Stephen Douglas, while ‘Franklin’ was former President Franklin Pierce, ‘Roger’ was Supreme Court Chief Justice Roger Taney, and ‘James’ was current President James Buchanan. As just one example of how they apparently conspired together, Buchanan stated in his inaugural address that he would abide by whatever ruling the Supreme Court gave in Dred Scott v. Sandford, and just two days later Taney announced the decision.

But what a difference a few years, and a great and terrible war, brought about! After the Civil War, three “Reconstruction Amendments” were passed. The XIII Amendment (1865) abolished slavery and involuntary servitude nationwide, except as punishment for a crime. The XIV Amendment (1868) provided for, among other things, citizenship rights (thus overturning Dred Scott v. Sandford), due process of law (the basis for the 1973 Roe v. Wade abortion decision), and equal protection under the law (the basis for the 1954 Brown v. Board of Education decision against “separate but equal” facilities for whites and blacks, as well as for yesterday’s same-sex marriage decision). Finally, the XV Amendment (1870) prohibited denying a citizen the right to vote based on race, skin color, or previous condition of servitude.

So is the same-sex marriage issue decided forever in the USA? Maybe, or maybe not. It took just 11 years to completely overturn the Supreme Court’s transcendental and apparently permanent decision (by a 7-2 vote, no less) on whether black Americans could be citizens. As with northerners’ concerns in those days that the Court would rule that no state could prohibit slavery, perhaps thoughtful consideration by the American people today about the logical next steps on the definition of marriage will play a part. For example, if no law can limit marriage to people of opposite genders, how can a law limit it to just two people, and not three or more?

Whatever comes to pass with same-sex marriage in the coming years, let us hope and pray that we will not have to go through another civil war, whether literal or figurative, as part of that process.

Kevin J. Wood

June 27, 2015