Those who hail the recent U.S. Supreme Court ruling legalizing gay marriage as a victory base their praise on the subject matter of the case and its outcome.
But even before the hotly dissented 5-4 decision (every dissenting justice wrote an opinion), the right for gay couples to marry had already been extended to more than 225 million Americans in 37 states.
There was no additional victory in terms of liberty for those citizens. But for all Americans, the court essentially amended the Constitution--and brazenly circumvented the process established by the framers.
Ever since constitutions outlining popular government have been reduced to writing on this continent, authors have been devising methods to amend them.
Eight state constitutions in force in 1787 provided for amendments, as did the Articles of Confederation.
One of the many wisdoms visited on our U.S. Constitution was the inclusion of Article V's well-balanced provision for amendments to correct errors.
James Madison explained it well in The Federalist 43, when he described the proposed amendment procedure as necessary for subsequent generations to make whatever "useful alterations will be suggested by experience."
The nation's constitutional framers were well aware that times would evolve, and with them the role of government.
So they provided a specific process by which we the people could alter the Constitution.
Article V states:
"The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress ..."
Even though there are two ways to propose amendments, all 27 existing amendments were proposed by Congress, which is to say, by the people through their elected representatives.
That proved to be a brilliant, workable solution as the nation churned through its first two centuries, delivering as predicted by James Madison in The Federalist 43.
The amendment process was difficult enough to preserve "that veneration, which time bestows on everything," Madison wrote, and deliver the requisite stability necessary for "the wisest and freest governments."
In contrast to the Articles of Confederation, which mandated unanimous approval by the states for amendments, Madison argued that Article V "guards equally against that extreme facility which would render the Constitution too mutable, and that extreme difficulty which might perpetuate its discovered faults."
Sure enough, rather than have a majority of Supreme Court justices simply rule slavery unconstitutional, Congress proposed and the states ratified the 13th Amendment.
When women's suffrage proponents attempted to persuade the Court to simply "do what was right" and legislate from the bench, the justices--in a unanimous vote--refused to fabricate a right to vote in the federal Constitution.
Enfranchising women required amending the Constitution, and was effectively and consummately accomplished through the process in 1920 with the 19th Amendment.
When 18-year-olds were being sent to Vietnam, but prohibited from voting because most states set the age of suffrage at 21, Congress passed a law requiring the voting age to be set at 18 for all federal, state and local elections.
The Supreme Court justices could have simply pretended that somewhere in the Constitution was a penumbra extending voting rights to 18-year-olds, which they rightly deserved if deemed old enough to be drafted and die for their country.
Instead, as Hugo Black wrote in striking down the state and local applications of the law, "Congress has attempted to invade an area preserved to the States ... [and] exceeded its powers ..."
If the people wanted the Constitution to give 18-year-olds a universal right to vote, they needed to amend it. Which they did, in 1971, with the 26th Amendment.
In each of those cases, the will of the people prevailed in the manner prescribed by Article V's amendment process.
In none of those cases did rogue justices spit in the eye of the framers and proceed to issue de facto amendments while trampling Article V.
That's why there should be little joy in Mudville, or anywhere else in the U.S.A., over the Supreme Court's recent decision in Obergefell v. Hodges--regardless of anyone's opinion about gay marriage.
It's a perilous danger signal to have five unelected justices exhibiting megalomania amend the Constitution without a proposal by Congress or any ratification by the states or the people.
If the people, gay or straight, wished to insert a marriage clause of any sort into the Constitution, the way to do it was clearly established 227 years ago and practiced successfully 27 times since.
A special-interest cause may have gotten a political win in this case. But we the people suffered a major constitutional loss.
If Article V can be so casually trodden down, with apathy as the main public response (despite some exceptionally erudite dissents), how safe can other articles and sections be?
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Dana D. Kelley is a freelance writer from Jonesboro.
Editorial on 07/10/2015