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Isaac Roberts, 2015 law clerk, explains that the US Supreme Court has usurped from citizens the democratic process for amending the Constitution


September 17, 2015 by Tom Roberts, Esq.

A 2015 summer high school law clerk for the law firm explains that the process for amending the Constitution by deliberate action of the people of the 50 United States has been usurped by the United States Supreme Court.  This assignment was written by the high school law clerk.



Original intent/strict constructionism is founded on the principle the constitution and its amendments were made to last. Its provisions were ratified through democratic means by the people. They were ratified in a certain context and with a certain meaning. The founders realized that they could not plan for every possibility or circumstance that would arise in the future; therefore, they created a means by which to add to the constitution — with the use of an amendment. The amendment process, which requires an amendment to be ratified by ¾ of the states to become part of the constitution, guarantees that any changes to the constitution will be made only with the support of the vast majority of American citizens. Proponents of strict constructionism say that to interpret the constitution in a new context, outside of its original intent would be to modify the constitution without the consent of the people. Article V of the constitution very clearly specifies the legal means by which the constitution can be modified — it makes no mention of the Supreme court  reinterpreting pre-existing clauses or amendments. In the recent Supreme Court decision in Obergefell v. Hodges, in which the Court claimed the 14th amendment requires a State to grant a  marriage license to same-sex couples, the Court severely overstepped its powers according to the original intent approach. The 14th amendment was ratified in 1868, and its intent was clear — to give freed slaves full citizenship and ensure they were given equal protection under law. Marriage equality was certainly not the intended purpose of this amendment, and Justice Kennedy and those who voted with him changed with 4 votes what should have been decided upon by the American public.

The loose interpretation/living document approach says that the constitution could not have been and was not sufficiently structured to remain effective following the technological, political, and social advancements after its ratification by the American people. The living document theory says that the constitution and its amendments should be interpreted in a modern context and applied wherever there exists a need. Some proponents of this approach argue that the court should counter the “tyranny of the majority” by finding new interpretations to fight social injustice. An example of loose interpretation is the Supreme Court’s decision in Obergefell v. Hodges in which the 14th amendment, which was ratified in order to grant former slaves and black Americans full citizenship, was used to justify a national legalization of gay marriage and nullification of countless state laws which defined marriage as the union of a man and a woman.

I favor the original intent interpretation. I believe that government should be governed by the people, and as Patrick Henry points out, the constitution is the method by which the people control government. The living document theory, in practice, gives the government the power to control the constitution, and thereby the power to govern itself. This is not a good thing. Article V of the constitution outlines a very specific means by which it can be amended, and judicial review and dynamic interpretations of current clauses are not mentioned. Amendments should only be viewed in their original intent and context because that is what the American people agreed to; anything more must once again be vetted by the people before it becomes law. There are 9 Supreme Court Justices and 50 states, simple math tells you that all the states are not represented in the Supreme Court (and that’s ignoring the fact that Supreme court justices serve for life and are not elected). Furthermore, even if the public mostly agrees with one of the court’s arbitrary interpretations, will it agree with the next? For instance, since the Obergefell v. Hodges decision states “there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State. . .”, does that mean that lawful concealed weapon permits issued in Virginia must be accepted all 50 states?

  1. Name of Court Case: Obergefell v. Hodges

  2. Which amendment/constitutional article is being tested?

    1. The 14th amendment is being tested.

  3. What specific provisions of the amendment/article are at issue?

    1. No state shall “deprive any person of life, liberty, or property, without due process of law.” (fundamental right claim)

    2. Equal protection clause

  4. What circumstances led to the court challenge? Why was court action initially filed in this case? What are the background facts of the case?

    1. Circumstances/Reason filed

      1. Fourteen same-sex couples and two men whose same-sex partners are deceased, filed suit in Federal District Courts in their home States. The petitioners claim that state officials violated the Fourteenth Amendment by denying them a marriage license or by failing to recognize a marriage license granted by another State. Each District Court ruled in the petitioners’ favor, but the cases were consolidated and reversed by the Sixth District Court.

    1. Background

      1. “Thousands of years of human history in every society known to have populated the planet [has defined marriage as the union between a man and a woman]” — Justice Roberts

      2. Marriage has changed as time has progressed. For instance, arranged marriages based on political and financial necessity are no longer the norm.

  1. How has this case been decided in the Federal District Courts and the Federal Appeals Courts?

    1. Each Federal District Court ruled in the petitioners’ favor, but the Sixth Circuit consolidated the cases and reversed.

  2. Who is the petitioner in the case?

    1. The petitioners in the case are

      1. 14 same-sex couples and two men whose same-sex partners are deceased

  3. What is the petitioner’s argument in the case? How do they view the case in relation to precedent?

    1. “The petitioner’s argument in the case is that State officials violate the Fourteenth Amendment by denying them the right to marry or to have marriages lawfully performed in another State given full recognition.”

    2. Eisenstadt v. Baird, 405 U. S. 438 and Griswold v. Connecticut, 381 U. S. 479 –486 set the precedent that the “liberty” referred to in the Fourteenth Amendment’s Due Process Clause includes choices “central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs. . .

    3. Loving v. Virginia, 388 U.S. 1 which invalidated bans on interracial unions, Turner v. Safley, 482 U. S. 78 which held that prisoners could not be denied the right to marry, and Zablocki v. Redhail which invalidated a law that barred fathers behind on child–support payments from marrying, all which dealt with barriers to marriage as it was defined by the state. The petitioners’ used these cases to justify overwriting laws in over half the States which defined marriage as the union of a man and a woman. —

    4. Implied right of privacy — Grisworld, 381 U.S., at 486. and Lawrence v. Texas, 539 U.S. 558 (2003)

    5. Lochner v. New York, 198 U.S. 45 set the precedent for the right and liberty of an individual to make contracts.

  4. Who is the respondent in the case?

    1. The respondent is Richard A. Hodges — the director of the Ohio Department of Health.

  5. What is the respondent’s argument in the case? How do they view the case in relation to precedent?

    1. “Thousands of years of human history in every society known to have populated the planet” defines marriage as the union of a man and a woman.

    2. Loving v. Virginia, Zablocki v. Redhail, nor Turner v. Safley all dealt with the State establishing barriers to marriage as it was already understood and defined by the state; none of these cases challenged the precedent that marriage was between a man and a woman. As Justice Roberts points out, in Turner  and Zablocki the laws challenged did not define marriage as “the union of a man and a woman, where neither party owes child support or is in prison.” The case was about the State creating a barrier which would stop some of its citizens from taking part in what it defined as marriage. Similarly, the law challenged in Loving did not define marriage as a “union between a man and woman of the same race.” Because neither Loving, Zablocki, nor Turner deal with the definition of marriage or the States’ ability to define marriage within their borders, the petitioners’ argument does not stand.

    3. In response to the implied right of privacy claim, Roberts (and for the record I realize Roberts isn’t the respondent, but I couldn’t actually find the respondent’s argument) makes the distinction that while the instances in Grisworld and Lawrence created criminal activities, marriage laws in Obergefell v. Hodges involve no government intrusion into one’s private life.

    4. Lochner says a person has “the general right of an individual to be free in his person and in his power to contract in relation to his own labor.” The idea that the inability to marry whomever (meaning either gender) one wants makes a person not “free in his own person” is one that should be addressed with legislation because the American people have yet to pass an amendment to the constitution with that intent.

  6. Which interest groups have filed an amicus curiae brief in this court case?

    1. The County of Cuyahoga

    2. Columbia Law School Sexuality and Gender Law CLinic

    3. Indiana University

    4. BiLaw

    5. The American Humanist Association and Center for Inquiry

    6. Citizens United for the Individual Freedom to Define Marriage

    7. Constitutional Accountability Center

    8. So many more…

  7. As a justice, for which party would you decide?

    1. I would decide for the respondent.

  8. How would you logically support your decision?

    1. Having read Justice Roberts’ dissent, most of my arguments would align pretty closely with his. First, the original intent 14th amendment when it was ratified by the American people was to give full citizenship to freed slaves/blacks. Using the amendment to nullify laws in over half of the States and redefine the definition of marriage which has been held throughout all western civilization is completely outside the scope of what the American people authorized the government to do when they added it to the constitution. Additionally, as Justice Roberts points out, there is no precedent for a constitutional right to marriage. Loving and Turner both deal with the state creating barriers to what it defines as marriage rather than the actual definition of marriage. The implied right of privacy argument also has no merit because current legislation creates no crime; anyone is free to get a marriage license provided that the circumstances fit within what the state has legally defined as marriage.

  9. What was the Supreme Court’s decision in your case?

    1. The Supreme Court decided that the Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state.

  10. What was the vote on the court?

    1. The vote in the court was 5-4.

  11. Who wrote the majority opinion?

    1. Justice Kennedy wrote the majority opinion.

  12. Who wrote the dissenting opinion?

    1. Chief Justice Roberts, Scalia, Thomas, and Alito all filed dissenting opinions.

  13. Was there a concurring opinion?

    1. There was no concurring opinion filed.

  14. What logic did the majority use to reach their decision?

    1. The majority argued that the Fourteenth Amendment’s Due Process Clause protects choices which are central “to individual dignity and autonomy, including intimate choices defining personal identity and beliefs.” The majority argued that marriage is a matter of individual autonomy — to compromise one’s ability to marry is to compromise his or her personal freedom. Another point made by the majority is that same-sex couples have a right to enjoy intimate association, and there is no more intimate association than marriage. Kennedy also said that without the right to marry, families with same sex parents suffer the stigma of knowing their family is somehow lesser and miss out on some of the benefits that the States have linked to marriage. Finally, Kennedy argues that waiting for legislative change would mean that same-sex couples would continue to be harmed by unjust laws in the interim.

  15. What is your opinion of the decision?

    1. In my opinion, this was a terrible decision by the majority and was an enormous abuse of power by the Supreme Court. Changes to the constitution are supposed to be made by elected representatives on behalf of the people, not by four appointed judges. Striking down laws in over half of the fifty States without a constitutional basis is simply appalling. The court’s actions are made even worse by the fact that in many states the democratic system was allowing for marriage to be redefined as the union of two individuals regardless of gender where there was enough support. I think the result of this case shows the extent to which the constitution’s meaning can be twisted under the living document theory. When the Fourteenth Amendment was ratified, the people of the United States did not and had no intention to create a right to marriage; however, according to the living document theory, that same amendment has the power to change over half of the States’ definition of marriage.


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