Same-Sex Marriage Versus Judicial Good Behavior

“Same-sex marriage” may be an affront to common sense, an oxymoron, and even an ontological impossibility. But as the product of a type of behavior familiar in contemporary politics, its promotion is nothing really new. The contention that the government may impose “same-sex marriage” on society is just a particularly egregious example of the dark art of “law laid down by linguistic legerdemain”: namely, the usurpation of governmental authority through alteration of the meaning of a legally operative word or phrase by affixing to it some tendentious adjective or other qualifying term.

Simply by transmogrifying definitions, entirely new sets of legal rights, powers, privileges, immunities, duties, exposures, and liabilities can be created out of essentially nothing more than plays on words. For example, prefixing the noun “speech” with the pseudo-adjective “hate” creates the novel legalistic category of “hate speech”, which supposedly is not protected by the First Amendment, and therefore can be subjected to pervasive governmental regulation. With no greater difficulty than that, public officials can arrogate to themselves a license to impose censorship and to penalize individuals who expatiate vehemently on prohibited subjects. This process is also capable of aggregating such synthetic powers. For instance, once “same-sex marriage” receives a legalistic imprimatur, those who express a strong aversion to it can be condemned for “hate speech”.

Although such verbal tricks can be performed in legislative statutes and administrative regulations, the judiciary’s method of continuously generating myriad “precedents” on an ad hoc “case-by-case” basis — in each of which instances judges can make subtle, incremental changes in the law through supposed “constructions” and “applications” — provides the widest latitude for alterations of this kind.

Specifically, judges have expanded Congress’s limited constitutional power “[t]o regulate Commerce . . . among the several States” into a discretion to regulate, within and throughout the States, not only actual “Commerce”, but also matters which have nothing whatsoever to do with “Commerce”. This feat only required ruling that the power to regulate “Commerce” entitles Congress to regulate whatever is capable of “affecting Commerce” — even though the latter is admittedly not itself “Commerce”, or else the modifier would be unnecessary. Employment of the participle “affecting” has resulted in a legal elephantiasis of the term “Commerce” (and thus of Congress’s power with respect to “Commerce”), without the inconvenience (and honesty) of amending the Constitution for that purpose. More generally, by invoking “the living Constitution” — which must be distinguishable from “the Constitution” simpliciter, or else the participle would be superfluous — judges can rationalize to their own satisfaction the expansion of every governmental power to whatever degree they dare.

Self-evidently, though, “law laid down by linguistic legerdemain” is most effective — and most dangerous — when the process occurs through the redefinitions of words which do not appear in the Constitution. After all, phrases such as “affecting Commerce” and “hate speech” depend in the final analysis upon nouns the meanings of which are defined and thus circumscribed by the legal theory, history, and practice peculiar to the United States. Even by recourse to imaginative adjectival or other modifiers, one can go only so far in attempting to bend the received legal meanings of such terms before the deception becomes patent to every observer.

In contrast, the import of and justification for “same-sex marriage” depend upon plastic and controversial conceptions concocted from such sources as sociology, psychology, and fashionable ideologies, not upon specific legal terms with well-known and relatively narrow technical meanings. And necessarily so. Inasmuch as marriage has preexisted the government of the United States for centuries in Western civilization (and even for millennia if other civilizations are considered), the government cannot claim to have been the origin either of marriage itself or of the definition of marriage.

The U.S. Constitution nowhere mentions marriage or any matter material to it. So the government can point to no historical precedent or present power under color of which it can purport to equate “same-sex marriage” with marriage for any purpose. No power, that is, unless public officials enjoy an unbridled license to redefine common words ad libitum — because if “same-sex marriage” were the same as marriage the adjective would not be necessary. (And perhaps not to define those terms at all, under the pretense of equating them. For the proponents of “same-sex marriage” have yet to clarify precisely what definition of marriage allows for participation on equal terms both by two individuals of opposite sex and by two individuals of the same sex — and yet excludes such arrangements as “plural marriage”, “child marriage”, “incestuous marriage”, or perhaps even “interspecies marriage”.)

It should be obvious that for any public officials to claim the discretion to redefine words in order to expand their powers is to misuse or abuse their authority. Through the Looking-Glass exposes the ulterior purpose of such an assertion as well as its audacity:

“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean — neither more nor less.”

“The question is,” said Alice, “whether you can make words mean so many different things.”

“The question is,” said Humpty Dumpty, “which is to be master — that’s all.”

Such attempts by political wordsmiths “to be master — that’s all” are arguably less dangerous as far as the Legislative and Executive Branches of the government are concerned than where the Judicial Branch is involved. For members of the Legislative Branch who persist in perversely redefining words in the course of enacting statutes can be removed from office by the electorate at regular intervals, or even can be expelled from Congress by its other members. If the chief officers of the Executive Branch (the President and the Vice President) misbehave in a similar fashion when executing the laws, they too can be removed by the voters; and in any event the President is subject to limitations in the number of terms he may serve. In addition, the President can demand the resignation of any errant official whom he has appointed to a position in the Executive Branch. Moreover, Congress can eject any civil officer of the United States from his office “on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors”.

Distinguishably, judges are not elected officials; and their tenures in office are indefinite, the Constitution providing that “[t]he Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour”. The latter clause is usually said to invest judges with “life tenure”, so as to render their expulsion from the Bench exceedingly difficult. Such is not actually the case, however. For judges can be removed — not only as with any other civil officers “on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors” — but also for a lack of “good Behaviour” which does not rise to the level of an offense which warrants impeachment.

Plainly enough, the grounds for “Impeachment . . . and Conviction” and what forms of misconduct manifest a lack of “good Behaviour” are not identical. Rather, according to basic principles of constitutional interpretation, each provision of the Constitution must be construed in the light of the others, and that no provision of the Constitution can be presumed to be without effect. If the “good Behaviour” clause contemplated no more than the absence of “Treason, Bribery, or other high Crimes and Misdemeanors”, it would be superfluous — because, as civil officers of the United States, judges would always be subject to “Impeachment . . . and Conviction” on those grounds, without any special mention of their exposure. Or, to hammer home that point with redundancy, the Constitution might have specified that “Judges . . . shall hold their Offices unless impeached and convicted”. Thus, by dint of the dual standards, the Constitution recognizes that, although “Treason, Bribery, or other high Crimes and Misdemeanors” necessarily involve a lack of “good Behaviour”, not every lack of “good Behaviour” involves “Treason, Bribery, or other high Crimes and Misdemeanors”. And therefore the Constitution must allow for removal of judges under two different sets of circumstances and by two different procedures.

This is not to say that “Impeachment . . . and Conviction” would be inapplicable to a judge who practiced the dark art of “law laid down by linguistic legerdemain”, even in a single egregious case. Being a blatant mal-administration of his office, in violation of his public trust and duties, such misconduct could constitute a “high . . . Misdemeanor”, as William Blackstone explained in his Commentaries on the Laws of England and Joseph Story described in his Commentaries on the Constitution of the United States. Nonetheless, although possible, impeachment does not provide a practical remedy in most instances of this kind. First, the procedure is cumbersome. Second, the essentially criminal nature of a “high . . . Misdemeanor” would require sufficient evidence of malign intent (what lawyers denote as mens rea). The proof would likely be problematic, too, if an errant judge defended himself on the grounds that he had uncritically followed “precedents”, had mechanically applied the judiciary’s peculiar “tests” for construing the Constitution, or had relied unthinkingly upon some other intellectually impenetrable judicial mumbo jumbo in arriving at his decision.

In contrast, the standard of “good Behaviour” covers situations in which criminal wrongdoing and mens rea need not be present, whereas common sense deems intolerable the judicial misconduct in question.

That standard allows for the removal of judges who, although perhaps personally honest, have proven themselves in some other way unsuitable for continuation in office. A judge whose tenure manifests insanity, emotional instability, recurrent intoxication, physical inability to perform his duties, gross ignorance, incompetence as a legal analyst, or chronic indolence (to mention only a few disqualifying deficiencies) may not be guilty of “Treason, Bribery, or other high Crimes and Misdemeanors”; but his comportment certainly falls so short of “good Behaviour” as to require his removal. So, too, for a judge who, infatuated with “law laid down by linguistic legerdemain”, misuses the Constitution as a blank slate upon which to inscribe theretofore unheard-of and fantastic legal doctrines. Such a judge may sincerely hold to the belief that his office so empowers him. But an individual can be utterly sincere, yet at the same time completely and dangerously wrong. And an individual who acts upon so errant a belief cannot be suffered to hold a judicial office which enables him to harm the entire country by putting that belief into practice.

To be sure, the Constitution specifies no particular procedure for removal of judges because of their lack of “good Behaviour”. Nevertheless, a power of removal incident to satisfaction of that condition must exist, even if only by implication, or else the condition itself would be meaningless. And no part of the Constitution can be dismissed as inoperative. Therefore, once a judge ought to be removed on that ground, he can be removed. And, if nowhere else, the authority to enact legislation to effectuate that end must inhere in Congress’s power “[t]o make all Laws which shall be necessary and proper for carrying into Execution . . . all . . . Powers vested in the Government of the United States”.

One plausible procedure drawn from the perspective of pre-constitutional Anglo-American legal history, as well as the structure of the Constitution itself, would involve: (i) a majority vote in both the House of Representatives and the Senate which call for the removal of a judge by enactment of a suitable bill or resolution which laid out the judge’s specific misconduct in violation of the standard of “good Behaviour”; followed by (ii) an order to that effect from the President if he concurred in Congress’s directive.

If the constitutional principle of “checks and balances” is to be maximally effective, however, the Judiciary should play no part whatsoever in this process. For, just as with an individual, no institution can be suffered to be a judge in its own case. The contemporary Judiciary daily demonstrates not only such a disregard for basic constitutional principles of self-restraint, but also such irresponsibility, arrogance, and even imperialistic ambition to lord itself over the other branches of government as well as over the American people as a whole, that no judge can be presumed to be unbiased where the lack of “good Behaviour” of some other judge is at issue. In contrast, the requirement that both the Legislative and the Executive Branches should cooperate in the removal of judges would maximize the constitutional “checks and balances” at work in the process, and would minimize the possibility that institutional or personal prejudices might improperly affect its outcome.

It might be objected that a Congressional bill or resolution mandating the removal of a particular judge from office should be disqualified as a constitutionally prohibited “Bill of Attainder”. The Constitution plainly provides, however, that a judge can be removed for lack of “good Behaviour”; and any such judge obviously must be identified by name in the course of whatever process applies. Therefore, if the Constitution permits that process to involve the passage by Congress of what could be called a “bill” specifically directed ex necessitate at that judge by name, then such a “bill” cannot be a “Bill of Attainder” — for the simple reason that one provision of the Constitution cannot render nugatory any other provision.

It might also be objected that a procedure would not afford “due process” to a judge threatened with removal. “Due process”, however, is the process the Constitution makes due, which is not the same in every situation. An individual nominated for a position on the Bench has always been entitled to submit evidence as to his qualifications within the rules established for such a case by the Senate, but nothing more than that. The selfsame procedure, according to rules established by the House and the Senate for their respective hearings, should equally suffice in the case of an individual’s removal from the Bench. Certainly no historical example can be cited in support of a prediction that either the House or the Senate would arbitrarily preclude a judge or witnesses on his behalf from testifying or introducing other relevant evidence when such a bill or resolution were being considered.

By whatever means, though, something must be done — and soon — to bring reckless judges to heel. The present enthusiasm among all too many judges for legitimating “same-sex marriage” indicates how far they are willing to go in aid of perverse “social engineering” at this point in time. That vanishingly few people ever imagined that American judges would go even as far (and as fast) as they already have ominously suggests that they are more than likely to go farther still.


Edwin Vieira, Jr., holds four degrees from Harvard: A.B. (Harvard College), A.M. and Ph.D. (Harvard Graduate School of Arts and Sciences), and J.D. (Harvard Law School). For more than thirty years he has practiced law, with emphasis on constitutional issues. In the Supreme Court of the United States he successfully argued or briefed the cases leading to the landmark decisions Abood v. Detroit Board of Education, Chicago Teachers Union v. Hudson, and Communications Workers of America v. Beck, which established constitutional and statutory limitations on the uses to which labor unions, in both the private and the public sectors, may apply fees extracted from nonunion workers as a condition of their employment. He has written numerous monographs and articles in scholarly journals, and lectured throughout the county. His most recent work on money and banking is the two-volume Pieces of Eight: The Monetary Powers and Disabilities of the United States Constitution (2002), the most comprehensive study in existence of American monetary law and history viewed from a constitutional perspective. He is also the co-author (under a nom de plume) of the political novel CRA$HMAKER: A Federal Affaire (2000), a not-so-fictional story of an engineered crash of the Federal Reserve System, and the political upheaval it causes. His latest work is “How To Dethrone the Imperial Judiciary”. He can be reached at P.O. Box 3634, Manassas, Virginia 20108, or [email protected].

This article is part of a series on “Building Resistance to Same-Sex Marriage.” Please support this important work with a contribution to the U.S. Justice Foundation. Permission is freely granted to publish, copy, reproduce, distribute, or excerpt from this article for any purpose.