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"?
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