Constitution Abuse

In today’s Washington Post, a no less conservative commentator than Charles Krauthammer has weighed in on the wrongheadedness of the “Marriage Protection Act.”

In A Ban We Don’t (Yet) Need, buried in the usual nonsensical complaints about “redefining marriage” (water under the bridge), and the judicial branch having the nerve to interpret the law (isn’t that its job?), is this flash of brilliance:

So why not have a federal constitutional amendment and smite the arrogant solons of Massachusetts, Nebraska and Georgia, and those yet to come, all at once?

Because it is an odd solution for a popular-sovereignty problem to take the gay-marriage issue completely out of the hands of the people. Once the constitutional amendment is passed, should the current ethos about gay marriage change, no people in any state could ever permit gay marriage.

The amendment actually ends up defeating the principle it sets out to uphold.
The solution to judicial overreaching is to change the judiciary, not to undo every act of judicial arrogance with a policy-specific constitutional amendment. Where does it end? Yesterday it was school busing and abortion. Today it is flag burning and gay marriage.

It won’t end until the Constitution becomes pockmarked with endless policy amendments. The Constitution was never intended to set social policy. Its purpose is to (a) establish the rules of governance and (b) secure for the individual citizen rights against the power of the state. It defaces the Constitution to turn it into a super-legislative policy document. [emphasis mine]

We’ll overlook the incongruence of the “yet,” and of the failure to understand that reverence for our founding documents means applying their promise, as in (b) above, to all Americans, without reservation.

What is so wrong about defacing the U.S. Constitution in order to permanently codify a particular social policy is just as wrong with regard to defacing our Virginia Bill of Rights for the same purpose. I am entirely comfortable stating that George Mason’s Virginia Declaration of Rights was not intended as a tool to create social policy. It was most certainly not intended to to enforce social engineering, to allow one generation to prevent future generations from making legislative adjustments to reflect changes in social relations and public opinion.

This is the biggest, or at least the most global, lie being told about the Marshall-Newman amendment: That it places the definition of marriage and family in the hands of the people. In fact, it does precisely the opposite.

If a vindictive or greedy family member or other special interest decides to file a lawsuit challenging a legal arrangement between two unmarried people, claiming that they are trying to “approximate” the “effects” or “design” of marriage, the only power to decide what is and is not a family would be in the hands of unelected, unaccountable judges. The people would be powerless.

And that is exactly the idea. The urgency, even panic, with which the Marshall-Newman language was rammed through the legislature (“We must define marriage for the next generation, now! We can’t allow the process to be delayed!”) clearly illustrates the intent to foreclose on the right of the people to choose policy that the social engineers don’t like. They saw the tide of public opinion turning against them, and decided that they are entitled to stop that process, no matter what.

Whether this abuse of our founding documents takes place at the state or federal level, the intent behind it is just as anti-democratic and un-American.

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