Alan Keyes
'Gay marriage' -- is the law what the judge says it is?
By Alan Keyes
February 10, 2015

It looks as if the U.S. Supreme Court means to tackle the "gay marriage" issue this term. As their sworn oath requires it, they will presumably do so in terms of the Constitution of the United States. Sadly, the opinions thus far delivered by the lower federal courts hardly justify this assumption. After years of acting in light of the self-evident lie that "The law is what the judge says it is," many federal judges appear to have reached the dangerous conclusion that their high office exists to enforce their personal views, which, once handed down, must be credited with the force of law. Their written opinions therefore consist in a string of declarations, occasionally lucid, but for the most part devoid of logical reasoning.

This way of proceeding not only departs from the discipline of reason, it entirely contradicts the logic of constitutional government. In order to be reasonable, our thinking must respect the provisions by which reason operates. These provisions are the logic that is, as it were, the constitution of reason. In like manner, in order to be constitutional, the actions of the U.S. government must respect the logic by which it is supposed to operate in accordance with the provisions of the U.S. Constitution. It follows that any judgment about the constitutionality of a given policy, action, or activity of government must be articulated in terms that logically substantiate the conclusion that the said policy, action, or activity does or does not satisfy this requirement.

This cannot be done without articulating a train of thought that traces the evidently logical steps by which the judgment is justified in terms of the language and premises of relevant constitutional provisions. In this respect, constitutional law is not what the judge says it is. It is what judges and justices can, by logical reasoning, demonstrate it to be. This demonstration is required because the competent sovereign will that makes their opinion lawful is not their own, but that of the people as expressed in the Constitution ordained and established by them.

Over the past several years, I've written quite a few articles on the subject of the so-called "right" asserted in respect of "gay marriage." So it is only after much thought that I venture to say that the Supreme Court's decisions could very well be as momentous as the Dred Scott decision in the 19th century, and just as fraught with potentially fatal implications for the future Liberty and Union of the people of the United States. Many Americans feel that this is so. But when it comes to constitutional law, our feelings cannot be the crux of the matter. Rather we must rely, as the young Abraham Lincoln once said, on "Reason, cold, calculating, unimpassioned reason."

Because we live in an age mesmerized by the exaggerated authority of empirical science, we are prone to forget that reason never operates in a vacuum. Something, indeed a number of things, must be taken for granted. Such presumptions supply the starting point for thought, as well as the rules and procedures that allow the mind to recognize the point at which a valid conclusion is reached. Because they are taken for granted, the most basic premises of reason are usually not explicitly articulated in our thinking, but by nature and education they make themselves known when they are violated.

As we should expect, constitutional reasoning requires assumptions, rules, and procedures analogous to those of reason itself. They have to do with the source and nature of right, and the rules and procedures that allow us to distinguish right from wrong, justice from injustice. In the normal course of things, they are not explicitly articulated in the thinking that informs our actions. But by nature and education we come to know when they are being violated.

The Constitution of the United States is a general rule for government in written form, produced by deliberate thought and approved by consultation with the will of the people as a whole, expressed through their deliberately selected representatives. The premises and principles of justice these characteristics themselves exemplify are nowhere stated in the Constitution itself. Yet neither the form of government it establishes, nor the language it employs in doing so, can be understood without taking account of them.

The people of the United States are blessed to have an explicit statement of those principles, produced in circumstances that prove beyond doubt (by the test of arduous, deliberately chosen warfare) that they informed the thinking and moved the will of the generation that produced the Constitution. I mean, of course, the Declaration of Independence, and the historical circumstances that preceded and flowed from it.

In any course of reasoning, logical conclusions about its validity cannot be substantiated without regard for the unstated premises of reason itself. Similarly, in any course of reasoning about the U.S. Constitution, logical conclusions about how it applies cannot be substantiated without regard for the premises of the Constitution itself. Constructing a constitutional argument without reference to those premises is like constructing a house without reference to the foundations laid down for it. The parts not built upon that foundation will not stand. If they include what were supposed to be the main load-bearing walls of the house, as they collapse they will very likely bring the rest of the structure down along with them. (This train of thought arrives at its destination in Part II: "Gay marriage – what is the issue of right?" Just a click away.)

To see more articles by Dr. Keyes, visit his blog at and his commentary at and

© Alan Keyes


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Alan Keyes

Dr. Keyes holds the distinction of being the only person ever to run against Barack Obama in a truly contested election – featuring authentic moral conservatism vs. progressive liberalism – when they challenged each other for the open U.S. Senate seat from Illinois in 2004... (more)


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