July 5, 2015 --

Once again, LPR is going to quote from the concluding paragraph of Chief Justice John Marshall's opinion in Gibbons v. Ogden.

This latest LPR reference to Chief Justice Marshall is prompted by a footnote to Justice Antonin Scalia's sharp dissent from the Supreme Court's ruling that the dignity of marriage applies to couples of the same sex as well as to couples consisting of one man and one woman.

Justice Scalia's footnote stated: "The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie."

For LPR, a very good example of Chief Justice Marshall's "disciplined legal reasoning" is that last paragraph in his Gibbons v. Ogden opinion: "Powerful and ingenious minds...may, by a course of well digested, but refined and metaphysical reasoning, explain away the constitution of our country, and leave it, a magnificent structure, indeed, to look at, but totally unfit for use."

In this connection, consider the concluding observation in Chief Justice John Robert's dissent in the Same Sex cases: the Chief Justice indicated that persons celebrating the majority decision ought not also celebrate the Constitution. "It had nothing to do with it."

Chief Justice Marshall, at the end of his Gibbons v. Ogden opinion, went on to caution that clever minds "may so entangle and perplex the understanding, as to obscure principles, which were before thought quite plain, and induce doubts where, if the mind were to pursue its own course, none would be perceived."

"In such a case, " Chief Justice Marshall advised, it is peculiarly necessary to recur to safe and fundamental principles to sustain those principles, and, when sustained, to make them the tests of the arguments to be examined." If any principle long "thought quit plain" has been obscured for purpose of inducing doubts, surely it has to be the notion that marriage is the union of one man and one woman.

It should be acknowledged that Chief Justice Marshall's opinion in Gibbons v. Ogden preceded by some four decades the Fourteenth Amendment with its call, applicable to the states, for "due process of law" and equal protection of the laws." And to the foregoing, there now has been added,if sub silentio, the concept of "equal dignity in the eyes of the law" -- if LPR properly understands Justice Kennedy's majority opinion in the same sex cases.

Justice Scalia called the majority opinion in the Same Sex cases a "judicial Putsch," an assault on democratic rule, with Rule by a Majority of the Supreme Court replacing the idea of popular government. Perhaps Justice Scalia underestimates the American people who, notwithstanding an anti-democratic media, did put Republicans in control of both houses of Congress in the 2014 congressional elections.

Yes, as Chief Justice Roberts suggested, the left, including the media, has celebrated the majority decision in the Same Sex cases. But the People have yet to speak. Perhaps the election results in 2016, for President as well as for House and Senate, will instruct that the Same Sex decision, with reaffirmation by the Supreme Court of the Affordable Care Act, the day before, turned out to be no more than the high water mark of the leftist campaign to transform our nation into something other than the Framers of the Constitution intended, July 4, 1776.