Obergefell was as unconstitutional as Roe

ustice Clarence Thomas has received much grief for saying that the Supreme Court should address as soon as possible other “demonstrably erroneous” decisions, but he is right. If Republicans don’t agree with him, if they take the view that we should all pretend that Obergefell is constitutional, how are they any different than the “living Constitution” Democrats? Moreover, selective originalism is a very weak branch on which to sit. It makes the principle for overturning a ruling not its unconstitutionality but its apparent unpopularity, which means that any originalist ruling, including Dobbs, can be discarded the moment it proves polarizing.

Is the GOP the party of the Constitution or not? By submitting to the left’s hectoring and waving the white flag on much of its cherished judicial activism of the last 50 years, Republicans reveal themselves as only very weak and occasional constitutionalists. Contrary to all of their rhetoric, they are endorsing the evolution of the Constitution not by amendment, as the Founding Fathers intended, but by raw judicial power. Such “living Constitution” jurisprudence renders the actual one dead and establishes the Supreme Court as a political body engaged in an ongoing constitutional convention of revision. As Scalia warned in his Obergefell dissent, the majority on the Supreme Court, under such thinking, becomes “the Ruler of 320 million Americans coast-to-coast.”