Tag: Robert George

Contributor Post Created with Sketch. Peter Robinson and the Constitutional Complexities of Gay Marriage

Richard Epstein
By Richard Epstein
Richard Epstein Contributor
Known to students at the University of Chicago and NYU law schools as “the libertarian,” Richard Epstein has established himself as an expert in constitutional law, contracts, corporate law, real estate law, torts, labor law—and even Roman law. He is reputed to be more knowledgeable about Justinian’s Code than anyone since the Emperor Justinian himself. The Peter and Kirsten Bedford senior fellow at the Hoover Institution, Richard Epstein is the author of several books including, The Cas… [more]
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Peter Robinson’s post yesterday cites Robert George’s passionate attack on claims for the constitutionality of gay marriage, wherein George argues that this weighty issue should be decided analytically at the wholesale level. He looks at what he, and many others, think to be bad decisions by an activist Supreme Court and urges that Republicans, both in and out of government, should treat the decision “as an anti-constitutional and illegitimate ruling in which the judiciary has attempted to usurp the authority of the people and their elected representatives.”

This is a very radical claim and the effort to upset the doctrine of judicial supremacy, far from being confined to this decision, could easily be extended to any other ruling that is subject to extensive political disputation. Professor George seeks to make this argument by analogizing the situation with gay marriage to earlier cases. Here’s the relevant section that Peter quoted:

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Contributor Post Created with Sketch. Calling Richard Epstein and John Yoo, or, if the Supreme Court Legalizes Gay Marriage, How Should We Respond?

Peter Robinson
By Peter Robinson
Peter Robinson Founder
Peter Robinson, former Reagan speechwriter, wrote the historic Berlin Wall address in which President Reagan urged Mikhail Gorbachev to "tear down this wall!" Peter Robinson is now a research fellow at the Hoover Institution and hosts the interview program "Uncommon Knowledge." Peter is a co-founder of Ricochet.
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shutterstock_103670531Constitutional scholar Robert P. George, writing in First Things:

Dred Scott v. Sandford was the infamous case in which the Supreme Court of the United States, usurping the constitutional authority of the people acting through their elected representatives in Congress, purported to deny the power of the United States to prohibit slavery in the federal territories. It is very much worth recalling that Dred Scott was not just a case about slavery. It was a case about the scope and limits of judicial power. It was a case in which judges, lacking any warrant in the text, structure, logic, or historical understanding of the Constitution, attempted to impose their own favored resolution of a morally charged debate about public policy on the entire nation.

The Supreme Court did it again in 1905 in the case of Lochner v. New York (invalidating a worker protection statute enacted by the state legislature), and then several more times in the Warren Court era, culminating in Roe v. Wade—the Dred Scott decision of our own time. Now we face the prospect of yet another Dred Scott-type decision—this time on the question of marriage. I say that, not because same-sex relationships are the moral equivalent of slavery—they are not—but because five justices seem to be signaling that they will once again legislate from the bench by imposing, without constitutional warrant, their own beliefs about the nature and proper definition of marriage on the entire country.

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