Thursday, March 28, 2024
Miles from the Mainstream
D. R. ZUKERMAN, proprietor
“Safe and Fundamental Principles”

FEBRUARY 6, 2004 --

If liberals are creative in their uses of history, conservatives tend, perhaps, to ignore history altogether.

It might be useful if someone, in the context of the intrasex marriage matter, took note of the concluding remarks of Chief Justice John Marshall in the 1824 case of Gibbons v. Ogden--which had nothing to do with marriage, between men and women or otherwise, but which seems to offer some counsel of general value.

Chief Justice Marshall noted that "[p]owerful and ingenious 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, 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." - Quoted in Constitutional Law, Gerald Gunther, Editor, Ninth Edition (1975), p.132. University Casebook Series.

Arguably, there is a campaign underway to "entangle and perplex the understanding" that marriage refers to the union of a woman and a man. This "safe and fundamental" principle is not homophobic and should be the test of the arguments to be examined on the novel idea of marriage between a man and a man or between a woman and a woman.

Chief Justice Marshall indicated that if the "refined" arguments of "[p]owerful and ingenious minds" were accepted, the Constitution would be left "a magnificent structure, indeed, to look at, but totally unfit for use.

" What structure is to be left standing at all in our society if we are loath to express ‘safe and fundamental principles"?