Yesterday, I posted about Roy Moore and Alabama’s resistance to same-sex marriage, and a commenter took the federal courts to task, asserting that they’d exceeded their authority by invalidating “the will of the people.”
The evidence of over-reach? Nowhere does the Constitution talk about same-sex marriage.
This is an argument that makes my head explode, because it betrays one of the most fundamental misunderstandings of our legal system.
Of course there’s nothing in the Constitution about same-sex marriage. There’s nothing in it about any kind of marriage. Or about the right to travel, or practice a profession, or numerous other rights it protects. That’s because the Constitution is not the source of our rights.
The Founders were persuaded by Enlightenment philosophers like Hobbes and Locke that humans are born with “natural rights.” We have those rights by virtue of being human (or, if you are religious, because we were “endowed” with them by a creator). The job of government, according to Hobbes, was to protect those natural rights and our individual liberty; Locke agreed, writing that government needed to be limited so that state power would not be used to infringe our natural rights and liberties.
The Bill of Rights doesn’t grant rights; it limits government. Even when that government is expressing “the will of the people”–or as the Founder’s might have put it, the “passions of the majority.”
If someone wants to argue that there is no “natural right” to choose your own marriage partner–that the right to live your life in accordance with your own conception of morality and with fidelity to your deepest identity is not a human right–I’ll disagree strongly, but that would be the appropriate argument.
Triumphant declarations that you read the text of the Constitution and didn’t find a “right” to same-sex marriage simply tells the world that you are profoundly ignorant of the purpose of our Constitution and the theory of government upon which it was based.