The Greatness of Scalia

But to defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to condemn, demean, or humiliate other constitutions. To hurl such accusations so casually demeans this institution. In the majority's judgment, any resistance to its holding is beyond the pale of reasoned disagreement. To question its high-handed invalidation of a presumptuously valid statute is to act (the majority is sure) with the purpose to "disparage," "injure," "degrade," "demean," and "humiliate" our fellow human beings, our fellow citizens, who are homosexual. All that, simply for supporting an Act that did no more than codify an aspect of marriage that had been unquestioned in our society for most of its existence— indeed, had been unquestioned in virtually all societies for virtually all of human history. It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race.

It takes real cheek for today's majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here—when what has preceded that assurance is a lecture on how superior the majority's moral judgment in favor of same-sex marriage is to the Congress's hateful moral judgment against it. I promise you this: The only thing that will "confine" the Court's holding is its sense of what it can get away with.

In the majority's telling, this story is black-and-white: Hate your neighbor or come along with us. The truth is more complicated. It is hard to admit that one's political opponents are not monsters, especially in a struggle like this one, and the challenge in the end proves more than today's Court can handle. Too bad. A reminder that disagreement over something so fundamental as marriage can still be politically legitimate would have been a fit task for what in earlier times was called the judicial temperament. We might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution. We might have let the People decide.

But that the majority will not do. Some will rejoice in today's decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better. I dissent.

Theodore Roosevelt on the "Tyranny of the Majority"

From his introduction to "Majority Rule and the Judiciary" by William Lynn Ransom

"There are sincere and well-meaning men of timid nature who are frightened by the talk of the "tyranny of the majority." Those worthy gentlemen are nearly a century behind the times. It is true that De Tocqueville, writing about eighty years ago, said that in this country there was great tyranny by the majority. His statement may have been true then, although certainly not to the degree he insisted, but it is not true now. That profound and keen thinker, James Bryce, in „ "The American Commonwealth," treats of this in his chapter on the "tyranny of the majority," by saying that it does not exist. His own words are that:

"It is no longer a blemish on the American system, and the charges against democracy from the supposed example of America are groundless. The fact that the danger once dreaded has now disappeared is no small evidence of the recuperative forces of the American government and the healthy tone of the American people."

I shall protest against the tyranny of the majority whenever it arises, just as I shall protest against every other form of tyranny. But at present we are suffering in no way from the tyranny of the majority. We suffer from the tyranny of the bosses and the special interests—that is, from the tyranny of minorities. Our respectable opponents among the leaders of business and the bar are acting as the servants and spokesmen of the special interests and are standing cheek by jowl with the worst representatives of politics, when they seek to keep the courts in the grasp of privilege and of the politicians; for this is all they accomplish when they prevent them from being responsible in proper fashion to the people. These worthy gentlemen speak as if the judges were somehow imposed on us by Heaven, and were responsible only to Heaven. As a matter of fact, judges are human just like other people, and in this country they will either be chosen by the people and be responsible to the people, or they will be chosen by and be responsible to the bosses and the special interests and the political and financial beneficiaries of privilege. In die course they are taking, the great corporation lawyers are, in some cases certainly unconsciously, and in other cases I fear consciously, acting in behalf of the special interests, political and financial, and in favor of privilege, and against the interests of the plain people, and against the cause of justice and of human right.

I wish to keep the courts independent. But at present the independence of the courts is far more frequently menaced by special privilege than by any popular tyranny. I wish to protect them against both. The safe way to prevent popular discontent with the courts from becoming acute and chronic, is to provide the people with the simple, direct, effective, and yet limited power to secure the interpretation of their own constitution in accordance with their own deliberate judgment, by the method I have above outlined."

Harlan on the Warren Court and Sims Vs. Reynolds

"The failure of the Court to consider any of these matters cannot be excused or explained by any concept of "developing" constitutionalism. It is meaningless to speak of constitutional "development" when both the language and history of the controlling provisions of the Constitution are wholly ignored. Since it can, I think, be shown beyond doubt that state legislative apportionments, as such, are wholly free of constitutional limitations, save such as may be imposed by the Republican Form of Government Clause (Const., Art. IV, § 4), ^[n4] the Court's action now bringing them within the purview of the Fourteenth Amendment amounts to nothing less than an exercise of the amending power by this Court.

So far as the Federal Constitution is concerned, the complaints in these cases should all have been dismissed below for failure to state a cause of action, because what has been alleged or proved shows no violation of any constitutional right."