There is a fine art to constitutional politicking these days. With the surge of a newly powerful Republican Party in Congress, the chambers of our government are increasingly populated by those who would seek to dismantle it. This dismantling takes many forms, but ironically is often done in the name of the Constitution. Stubbornness and inefficiency become the sword and shield of those who outfit themselves the protectors of the constitutional integrity. The executive orders and recess Cabinet appointments of the Obama administration — desperate acts to get something, anything, accomplished in a gridlocked government — are thus framed as the agents of our government’s self-destruction.
But when faced with actual Constitutional destruction, conservatives fall strangely silent. Former Arkansas Gov. Mike Huckabee recently urged local and state judicial clerks not to issue marriage licenses to gay couples in the name of the Constitution, representing the issue in the way modern conservatives interpret the document. Huckabee’s request would nullify the expected Supreme Court decision on gay couples’ right to marry nationally. His reasoning was, if anything, clear — he argued the Supreme Court is tasked merely with interpreting the law, which he believes is very different from writing it.
Huckabee could do well with a lesson on what interpretation really means. Judicial review, the power by which the court can rule on the constitutionality of federal and state legislation, has existed almost since the founding of the United States. One of the first Supreme Court cases in our nation’s history, Marbury v. Madison, made clear that the Supreme Court’s power of interpretation allowed it to deem federal and state legislation unconstitutional.
The Supreme Court occupies a niche that developed inexorably throughout the course of our nation’s history. As the yellowing old document was stretched further and further to meet new challenges, the role of the Supreme Court grew accordingly. Through judicial review, the Supreme Court itself has become a vital part of the Constitution, serving as a vessel to bring it into the modern age — and in this modern age, gender and sexual minorities need to be incorporated into the folds of civil rights.
None of this matters to Huckabee, of course, nor to any politician who uses the Constitution as a political bludgeon. They merely see the Supreme Court as another form of federal overreach, and occasionally an enemy to easily cast against themselves. But when we consider the liberties and legal protections that Supreme Court decisions endow us with, Brown v. Board of Education for example, they become an indispensable arm of the Constitution itself — certainly more so than those who would strike down others’ freedom in its name.
A version of this article appeared in the Monday, Feb. 2 print edition. Email Richard Shu at [email protected]