Subject: Paper
From: "Finnegan Biden" <[email-masked]>
To: "R. Hunter Biden" <[email-masked]>
Date: Fri, 4 Nov 2016 03:55:40 +0000

In Federalist Essay 78, Hamilton argued that the Supreme Court existed for two reasons, the first reason being the need to enforce fundamental law laid out in the Constitution, and the second being the need to protect against the will of democracy. For over 200 years, the Supreme Court has ruled the most important and consequential cases, in order to preserve and protect the Constitution.  Justices are given the power to greatly influence our countries history through their votes on cases, such as the Fourteenth Amendment, abortion rights, freedom of speech, and so much more. Over the course of two centuries and thousands of cases, the Supreme Court has evolved into arguably the most consequential branch of government. In recent years, however, many theorist and even Justices themselves have argued that the Supreme Court’s expansion of power is unconstitutional and encroaches upon the boundaries laid out to them by the Founders. The most recent example of this debate is portrayed through the Obergefell v. Hodges case, which ultimately granted the right to gay marriage in a vote 5-4. The majority side validated their decision based on the ideals of our “living constitution.” They argued that the right to gay marriage was an individual liberty and therefor should not be discriminated against. Contrarily, the dissenting side argued that the decision was unconstitutional in almost every aspect. The debate within this singular decision portrays an ongoing debate among justices: how should the Constitution be interpreted? This question will likely never be answered, however, two clear sides are presented within both Chief Justice Roberts and Justice Kennedy’s arguments.

Justice Kennedy, who voted on the majority side claimed that the decision was based on this idea of a living Constitution. It is a more liberal approach in interpreting our 200 years, but it makes sense, we shouldn’t blindly trust our 2-century-old Constitution, rather our understanding of it should evolve. Justice Kennedy said that our founders “entrusted to future generation a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”

Chief Justice Roberts, who voted on the dissenting side, and authored the dissent argument, had several good points as to why he voted in opposition to gay-marriage. His argument centered on the idea that the Judicial branch isn’t the Legislative branch, rather judges are appointed figures who are given the power to judge laws, not make them.  In his writing he deemed the decision unconstitutional in every aspect, not only did it trespass upon the limits of their power, but it also violated the very principles of our democratic republic.

Both sides make clever arguments, but Chief Justice Roberts ultimately has a more convincing case. His contention agrees with the Constitution, Hamilton, and Chief Justice Marshall. In the Federalist Essay 78 Hamilton proclaims that the court shall exercise “neither force not will, but merely judgment.” In deciding to legalize gay-marriage the Justices (who are unelected and unaccountable) forced their opinion, whether it was right or wrong, upon the people by declaring it law. Roberts argues that our Founders “would never have imagined yielding that right on a question of social policy to unaccountable and elected judges.” He is in fact correct, our founder built this country on principles which secured a democratic republic- not one that left major decisions in the hands of unelected officials who can not be held accountable.

Despite the dissents strong case, the majority obviously had more votes and ultimately decided the outcome. Their argument was based around the idea of protecting individual rights laid out to us in the Bill of Rights, the Fourteenth and fifteenth amendment, and so much more. They believe it is their duty to secure freedom, which is ensured to the American people within the Constitution. In response to Roberts argument that the Judicial branch is to judge laws, not make them, the majority proclaimed that the “dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right.” This point is valid, the Constitution and the Judicial branch were formed in order to protect fundamental rights, especially the fundamental rights of minorities. However, how should one define what a fundamental right is? The answer is inherently bias. Fundamental rights vary among the population, why should our Supreme Court Justices be the one’s who decide them? Kennedy seemingly unconstitutionally and undemocratically admits that “fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.” This brings us back to Hamilton’s philosophy on why the Constitution exists: to protect against the will of democracy! If the Justices didn’t exist, then the minority would constantly be treated unfairly and subjected to the will of the majority.

CONCLUSION.