Talk about a ridiculous ruling, see this one on DOMA

DOMA is unconstitutional, Supreme Court rules. Dismisses Prop. 8 case for lack of jurisdiction.

DOMA violates the Fifth?

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

I expected DOMA might be ruled unconstitutional by a conservative court because congress lacks authority to define marriage, though it doesn’t actually do that but only specifies a requirement for eligibility for certain benefits controlled by federal law, anyway.

And if that sort of rationale did not seem plausible I did not see any legit way for a conservative court to strike it down.

Nor did the conservative Supremes, apparently.

This one is Kennedy plus the 4 liberals, so I suppose it’s no surprise due process is getting more work, here, than we would expect from any conservative jurist.

This is Justice Kennedy talking the most shocking nonsense about the Fifth, not to mention the most damnable lies about those who wrote, passed, and signed (Bill Clinton!) the thing.

DOMA out

(On the other hand, in the Lochner era it was the conservatives who told lies about due process.)

[Update, 06262013 at 1808 hrs, EDT.

Kennedy said the only reason for passing DOMA was bigotry and contempt for a known victim group, and that this it was that violates the due process clause of the Fifth Amendment.

Even leaving aside that, while it might be a good idea, the constitution nowhere empowers the Supremes to strike down laws whose only object is to harm and whose only motive is malice, the truth is that Kennedy’s assessment is unjust.

Over at National Review, some writers have pointed out a variety of secular reasons for DOMA that, truth to tell, seem to me flimsy, of little weight, and mere pretexts.

The real reason for DOMA is that, according to nearly every known variant of the Christian religion, marriage as desired by and acceptable to God is a relation between one man and one woman; while homosexuality is profoundly sinful and an abomination to the Lord.

And that is all there is to be said on the matter.

To my mind, that means DOMA conflicts with the First Amendment establishment clause, though I am aware that mine is not the only plausible reading and others would allow pretty much anything but full-bore establishment of a national church to get past that clause.

And anyway my point is not that, but that Kennedy simply ignored the evident and obvious fact that DOMA is not about hate, bigotry, or malice but enactment of the will of the Christian God into law.

And if the idea is that Kennedy sees this as a distinction without a difference then he is a blind, bigoted fool who most certainly ought not to be allowed to continue sitting on the court.

Anyway, there is no way to fix this.

Judges empowered with the last word, the unchecked and uncontrollable power to strike down federal laws or other acts of the federal government for conflicting with the constitution simply cannot be trusted to do their job honestly and without evident contempt for the understanding of the people or the will of anybody at all.

The only way to avoid ultimately irresponsible judicial dictatorship is to disempower the federal courts, to strip them of authority to nullify federal acts for conflicting with the constitution.

And to prevent them continuing to behave arbitrarily in their handling of acts of the states it might be necessary to find some way to rein them in, somehow, there as well.

Perhaps the answer is to deny them life tenure and let them serve subject to being summarily fired by the senate, once hired in the current manner.

Actually, that might be enough.

If we did that, we might not even need to strip them of the power to nullify federal acts for unconstitutionality.

Just firing a few of them in disgrace for evident abuse of power, once in a while, might keep them mostly honest.

Or maybe it would just force them to be dishonest in ways the senate wanted them to.

Still, even that would be an improvement over them being dishonest in ways only the totally extra-legal power of liberal PC wants them to.

/Update]

As for prop 8, the Supremes refused to rule at all, so they didn’t have to say a word about the 14^th Amendment.

But the result is that a lower federal court ruling against Prop 8 on bogus, liberal grounds is allowed to stand.

President Obama, like liberals everywhere, has greeted the decision against DOMA with joy, and they are not distressed it took a perverse reading of the Fifth Amendment to do it.

Less joy, but some, is out there over Prop 8, too.

It is revealing that most of the news stories today about both decisions ignore their alleged legal bases, anyway.

The Constitution?

Nobody knows, nobody cares.

It’s a triumph for the right (the liberal) values, and that’s all that matters.

PS.

OK, I'm sort of a hypocrite.

It appears to me questionable whether Social Security, Medicare, Medicaid, and much else of American social democracy and the American regulatory state I am partial to has a legitimate constitutional basis.

Good luck rooting around Article I, Section 8.

But the same could be said about the Air Force, our paper money, the Federal Reserve system, and much else that only the crankiest part of the right would like to see taken away.

Yet I am pretty sure constitutional amendments for the express purpose of providing a (more) solid basis for all these things could be written and ratified.

Nobody but an idiot thinks repeal of the 16th or 17th could be ratified, or new amendments ratified expressly to provide a  legit basis for the reading of "due process" used in the Lochner era, so beloved of conservatives like George Will, say.

And liberals are clearly inwardly certain no amendments could be passed to win their culture war victories for them, fair and square - the ones currently based on wholly absurd readings of "due process," "equal protection," and maybe soon also "privileges [and/or] immunities."

That means something, I think, that takes a bit of the bite out of that hypocrisy charge.

Would the American people pass an amendment giving the Supremes both an unchecked power of judicial review and life tenure?

I doubt it.