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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Saturday, November 04, 2006 ::
    More on the New Jersey ssm decision: At NRO's Bench Memos, Ed Whelan stresses a different aspect of the New Jersey decision, one that I missed in the course of trying to compare NJ's Equal Protection analysis with that of other state courts that have recently addressed this issue. Ed points out that the NJ state constitutional text on which the court based its decision is a preambular passage that more closely tracks the Declaration of Independence than the 14th Am. E.P. Clause.

    The text in question says:
    “All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness.”
    Says Ed:
    Based on this provision, and on previous judicial decisions construing it, the New Jersey Supreme Court has just ruled (unanimously) that all the rights and benefits of marriage need to be made available to same-sex couples. This is, simply put, judicial activism run amok, even if it reflects the gradual judicial accretion of power over some decades. So many judges today view judicial decisionmaking as essentially an autonomous process, unmoored from the meaning of the actual text. Not a single justice on the New Jersey Supreme Court did a simple sanity check: Is it remotely plausible, remotely compatible with democratic principles, to read this constitutional provision as supporting the court’s result? One could, with equal implausibility, maintain that the Declaration of Independence declares that the rights and benefits of marriage must be extended to same-sex couples.
    And that's comin' up down the road. This is one reason why I cringe just a little when my West Coast Straussian friends (among whom I number the editors of the fantabulous, rockin', you-all-should-use-it casebook that I use) tell us not to worry 'cause constitutional interpretation is rightly controlled by the good ol' Declaration.

    :: David M. Wagner 9:52 PM [+] ::

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