But the idea that "the Constitution guarantees a right to same-sex marriage" is pretty laughable.
Does anyone really believe this right was in the Constitution for 250 years, only to be discovered recently? In reality public opinion and culture changed, and 5 justices decided to change the law.
> Does anyone really believe this right was in the Constitution for 250 years, only to be discovered recently?
That seems to be the case to me. I'm not completely familiar with US history, but don't you think the right of black people to be free and equal to the other people was already written in the constitution 250 years ago, for example? Or women's suffrage. It just took a while to actually recognize it.
Homosexuality was legalized in France in 1791 according to the same set of ideals, during the same movement that gave birth to the US constitution. Slavery was abolished as well, and women's suffrage was discussed, because it was well recognized that these were all questions of equality. It isn't a stretch to think that the US constitution would also fundamentally allow homosexuality and forbid discrimination according to sexual orientation (and therefore allow gay marriage as well).
I'm not disagreeing with your general premise that the fundamental right for equality is the basis of the constitution and therefore equal marriage is implied by it. But to your points:
"the right of black people to be free and equal to the other people" (specifically the abolishment of slavery)
Is made explicit in the 13th amendment[0]
And "women's suffrage" is the 19th amendment[1]
So for both of your examples, these things are explicity added to the constitution.
Making something explicit makes it clear for everyone, but you could easily argue the rights of black people and women were written into the Constitution from the start- just in less obvious ways.
That's one of the court's jobs, after all, to evaluate complex or difficult situations and laws where it is not immediately clear what the law says. It reminds me of especially tortured and opaque code. You can't see on the surface that foo=bar, but after a long and arduous process of evaluation you discover- lo and behold- foo=bar all along. Or even more difficult, you discover that foo=1 implies bar=2.
These amendments were added via a process built into the Constitution to allow changes to be made, because the folks writing it knew they couldn't account for everything.
But furthermore, the specific wording of the constitution may actually have been intentional insofar that Jefferson may have wanted it to be clear that all people have equal rights. He obviously couldn't singlehandedly change the minds of everyone at the time, but the idea that he intentionally left the wording vague enough to include everyone is a valid idea, I think.
> don't you think the right of black people to be free and equal to the other people was already written in the constitution 250 years ago, for example?
No, of course it wasn't. Slavery was common and accepted when the Constitution was written, and the Constitution didn't say there was anything wrong with it until it was amended in 1865 with the passage of the 13th Amendment.
Since the decision rests on the 14th Amendment, it's only about 150 years.
But yes, the right was there all along, but the implications weren't realized before now. It's generally been accepted for quite a while that the government can't discriminate on the basis of a person's sex, but for some reason the obvious implications for marriage haven't been accepted until now.
Sure, the people who wrote the 14th Amendment didn't intend it to say this. But that's because they had a great deal of implied context that didn't go into the law, like "women can't vote," which no longer applies. But if the context disappears and the law as written pretty clearly says X without that context, are we supposed to ignore that?
The dissenting opinions make that point. While I support gay marriage, the Supreme Court overstepped their authority in this case. The Legislative branch writes laws, not the Judicial. Public opinion on the definition of marriage should change future laws, not past laws.
It's a slippery slope when you allow a bunch of unelected middle aged and old folks gather in a room and decide what is good and what is not for the rest of the population.
The US political system is a big joke in my opinion.
Sure! Like I said the whole US political system is a big joke but at least lawmakers can be held accountable theoretically for their voting decision to their electorate but to whom these appointed judges answer actually?
No, they believe this right was in the Constitution for 147 years (since the 14th amendment was added) and was only recently discovered. To be fair, the clause in question only says that they can't "deny to any person within its jurisdiction the equal protection of the laws" which is extremely vague, so it's inherently prone to being reinterpreted every few decades.
The Constitution guarantees that the government will be fair to citizens, and places certain restrictions on its powers. It does contain any rights in it at all. Rather, it assumes the pre-existence of rights, and works from there.
When it comes to rights, the onus is on the side of proving something is NOT a right. This goes all the way back to the founding of the nation and is enshrined in the 10th Amendment.
So yes, people have a right to same-sex marriage. Why? Because they want to. That's enough in the United States. If the government is going to intervene to prevent that, it needs to demonstrate a compelling reason to do so. No one has demonstrated such a compelling reason when it comes to same-sex marriage.
It takes a lot of imagination to think that the founders had any vision of the laws that the commerce clause would be used to justify today.
It took me a long time to realize that whether or not the constitution was designed or intentioned as a "living document" is completely irrelevant. What matters is how the process actually works today, and it works as if the constitution is a living document, therefore it is a living document. See also: Duck typing.
They needn't envision those laws, just as they needn't have envisioned automobiles or the internet. You could think of the Constitution establishes axioms. Just like math, what arises from those axioms can be boundless in complexity, but that has no bearing on the axioms.
I don't think that same-sex marriage rights were encoded in the Constitution or thought of as being rights by its drafters, but that doesn't matter -- the same was true of the interracial marriage rights granted as a result of Loving v Virginia. Your method of narrowly interpreting the Constitution is not shared by the court.
But the idea that "the Constitution guarantees a right to same-sex marriage" is pretty laughable.
Does anyone really believe this right was in the Constitution for 250 years, only to be discovered recently? In reality public opinion and culture changed, and 5 justices decided to change the law.