Rewriting the American Constitution in the 21st Century

Rewriting the American Constitution in the 21st Century

© David Burton 2015

The Supreme Court Decision

     As the American Heritage Foundation stated on 26 June 2015, “This has been a bad week for those of us who respect the Constitution and the rule of law.”

     The framers of America’s Constitution meant to separate the powers of government among three bodies that shared power: the executive branch, the legislative branch and the legal branch. Today, that separation has been partially destroyed by the U.S. Supreme Court’s decision on the Affordable Care Act (ACA) or, as more commonly known, Obamacare. What the Supreme Court did was to tell Congress that no matter what law Congress wrote, they, the Supreme Court, could effectively negate that law by deciding what the Congress supposedly meant rather than what Congress actually wrote in the legislation. In essence, the Supreme Court of the United States (SCOTUS) has effectively usurped the powers of Congress as written in the Constitution of the United States. It has done this “with a 6-3 ruling that the simple phrase ‘established by the state’ really meant ‘established by the state OR the federal government.” (Ref. 1)

    The Constitution of the United States gives the Supreme Court the power to determine if laws passed by Congress are constitutional. The Constitution does not give the Supreme Court the power to rewrite laws passed by Congress or to decide what the Justices think the legislators meant rather than what the legislators actually wrote down on paper!

     MIT’s Dr. Jonathon Gruber, one of the Obamacare’s architects, called the American public stupid in describing how Obamacare was presented to them. With its Obamacare ruling, some would say so is the Supreme Court. “Actually, the Supremes aren’t dumb. They don’t care. They disregarded what was in Obamacare and rewrote the law to their liking . . . We’re in banana republic territory now. Like badges, we don’t need no stinkin laws! [Emphasis mine]
     “As Justice Scalia said in his dissent, ‘Words no longer have meaning if an Exchange that is not established by a State is ‘established by the state.’ . . . Today’s interpretation is not merely unnatural: it is unheard of.’
      - - -
     When asked about Obamacare’s state exchanges, Dr. Gruber said, ‘If you’re a state and you don’t set up an exchange, that means your citizens don’t get tax credits.’
     “This guy wrote the law.  . . .
     “But now the Supreme Court says the law as written and as interpreted by its architect, doesn’t matter. The feds can do what they want with the exchanges, whatever the law says.” (Ref. 2)

     We might recall that “Jonathan Gruber once let slip that Obamacare supporters hoped to pressure states into establishing their own exchanges by limiting subsidies(Ref. 1) The Supreme Court has just ignored this fact.

     “. . . As Justice Antonin Scalia wrote in dissent yesterday, ‘normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved.’
     “Rather than rewriting the law ‘under the pretense of interpreting it.’ Scalia wrote, ‘the Court should have left it to Congress to decide what to do about the Act’s limitation of tax credits to state Exchanges.’ Instead an overreaching court simply pretended that limitation doesn’t exist. [Emphasis mine] ” (Ref. 1)

     What we have witnessed is a clear-cut case of the Supreme Court of the United States being willing to bend a law (Obamacare) backwards to preserve the Executive Branch’s position in spite of its own clear-cut language and that of the Legislative Branch. This is nothing more than a blatant example of judicial activism!

     One day after announcing its decision on the Affordable Care Act, The Supreme Court declared that same-sex couples have a right to marry anywhere in the United States.

     “Gay and lesbian couples already could marry in 36 states and the District of Columbia. The court's 5-4 ruling means the remaining 14 states, in the South and Midwest, will have to stop enforcing their bans on same-sex marriage.
     “The outcome is the culmination of two decades of Supreme Court litigation over marriage, and gay rights generally.
     “Justice Anthony Kennedy wrote the majority opinion, just as he did in the court's previous three major gay rights cases dating back to 1996. It came on the anniversary of two of those earlier decisions.” (Ref. 3)

     In its Obamacare decision, SCOTUS has said that words don’t matter. A day later, the Supreme Court decreed the legalization of same sex marriages. In this decision, SCOTUS again affirmed that words apparently have no meaning insofar as they are concerned. For centuries and millennia, the word marriage has clearly and unambiguously meant the union of one man and one woman. Similarly, the words husband and wife possessed clear and unambiguous meanings. The Supreme Court just changed all that! By a 5 to 4 vote the Supreme Court declared gay marriages to be legal in these United States.

     “In a strongly worded dissent, the conservative justice {Antonin Scalia} wrote that he did not care that gay marriage was now legal, but he said that the court's ability to make this decision represented a threat to democracy.
     "I write separately to call attention to this Court’s threat to American democracy," Scalia wrote in the opening paragraph of his dissent.
     "Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court," Scalia said.
     "This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.
" [Emphasis mine] (Ref. 4)

     Other comments from Scalia, include the following: Referring to the long-running debate on gay marriages, “But the Court ends this debate, in an opinion lacking even the thin veneer of law.”; “This is a naked judicial claim to legislative – indeed, super-legislative - power; a claim fundamentally at odds with our system of government.”; “A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.(Ref. 5)

     In the dissent to the majority opinion that was written by Chief Justice John Roberts, we have, “The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational.(Ref. 6)

     As I previously wrote, “ I am vehemently opposed to gay marriage, but, I am strongly in favor of civil unions. Why? - Because, I am a traditionalist. I firmly believe that tradition matters. The song ‘Tradition’ from ‘Fiddler on the Roof” strongly resonates with me. I simply don’t believe in discarding the old and accepted for some new fad.
     “The word ‘marriage’ has meaning for me. It is the binding together of a man and a woman in matrimony. For me, it has never meant the union of a man and man or a woman and a woman. For me, the term ‘wife’ means the woman in a marriage and the term ‘husband’ means the man in a marriage. Trying to call a man a wife or a woman a husband in a gay marriage is simply ridiculous as far as I am concerned. Similarly, where children are concerned, identifying one of the partners in a female gay marriage as the ‘father’ strikes me as silly and stupid as does the identification of one of one of the partners in a male gay marriage as the ‘mother’. A mother is a woman and a father is a man – plain and simple. The term marriage has historic, religious, and moral content that for millennia has always meant a union between a man and a woman. [Emphasis mine]
     “For me, the institution of marriage is dependent on its traditional definition being maintained as between a man (the husband) and woman (the wife), along with the traditional roles of the mother (the woman) and the father (the man). Civil unions uphold the institution of marriage by not interfering with it.
     “As I said before, I am a very strong supporter of civil unions (or any other appropriate designation other than marriage). I believe that any two people that want to live together as legal partners (married or otherwise) should all be entitled to the same rights and benefits. A legal document so-stating should be adequate to guarantee these equal rights and benefits, both from the states, territories and districts of the United States as well as from the federal government.
     “I have no desire or inclination to tell anyone else what lifestyle to live as long as their choice does not adversely affect the lives of anyone else. By the same token, I don’t believe that the government should be telling anyone what lifestyle to live or denying equal protection and benefits, no matter what their lifestyle. Religious groups are entitled to follow their beliefs, but they should not have the right to impose their beliefs on others and this applies to gays and gay marriage. Conversely, religious groups should not be forced to do what their religion prohibits – live and let live should be the rule.
     “As far as I am concerned, civil unions provide an effective solution in allowing same sex couples the same benefits, rights and responsibilities of a marriage without destroying the historical and traditional definition of marriage. Demanding to change well accepted historical and traditional definitions and meanings of words and terms is a way to verbal chaos – where words simply no longer have any meaning. It also denies traditionalists their rights – what would the term “marriage” mean to an ultra-orthodox Jew or a devout Catholic if there were no differentiation between heterosexual and homosexual unions?” (Ref. 7)

     The Supreme Court should have come to a meaningful compromise – marriage for the traditionalists and civil unions for the non-traditionalists with equal rights for both under the law. SCOTUS could have produced a win-win outcome rather than forcing one group to lose while the other group wins. Civil unions seem to be a more than reasonable accommodation for both opposing points of view.

     With their recent decisions on the Affordable Care Act and on gay marriages, the current justices of the Supreme Court have, - in divided decisions - effectively rewritten the Constitution of the United States!


  1. Words lose meaning in health care reform, OpEd, Boston Herald, Page 18, 26 June 2015.
  2. SCOTUS not dumb, just deaf and blind on Obamacare, Howie Carr, Boston Herald, Page 4, 26 June 2015.
  3. Supreme Court Extends Same-sex Marriage Nationwide, The Associated Press,, 26 June 2015.
  4. SCALIA: The Supreme Court is a 'threat to American democracy', Maxwell Tani, Business Insider, 26 June 2015.
  5. ’A naked judicial claim to . . . power’, Boston Herald, Page 15, 27 June 2015.
  6. ’Five lawyers have closed the debate’, Boston Herald, Page 15, 27 June 2015.
  7. I Say “No” to Gay Marriage , David Burton, Son of Eliyahu:Article 127, 21 May 2012.

  29 June 2015 {Article 225; Govt_61}    
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