August 7, 2006
By Linda Monk
Virginia has a unique constitutional heritage — one that it is now proposing to abandon. On June 12, 1776, the newly independent state adopted a constitution prefaced by a Declaration of Rights. Thus, Virginia became the first government ever — in human history — to have a written constitution that contained a written bill of rights.
Although England had adopted a Bill of Rights in 1689, it was an ordinary statute and not part of a written constitution. The British have an unwritten constitution, which makes it especially susceptible to the interpretation of judges.
Section 1 of that Declaration of Rights, since we all need an occasional reminder, reads:
That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.
Section 15, to which the clumsy, ambiguous, discriminatory language of the Marshall/Newman amendment would be added if passed, reads:
That no free government, or the blessings of liberty, can be preserved to any people but by a firm adherence to justice, moderation, temperance, frugality, and virtue and by frequent recurrence to fundamental principles.
Let’s review. Marshall, Newman, and some outfit calling itself “Virginia for Marriage” wants to add to the above language, which articulates the qualities necessary to a free government, this clunker:
“This Commonwealth and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage. Nor shall this Commonwealth or its political subdivisions create or recognize another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage.”
As Monk (very moderately) points out, this is “language that would make Thomas Jefferson and George Mason cringe.” A Bill of Rights is not a Bill of Prohibitions. Those wishing to prohibit things of which they don’t approve have the right to elect representatives who will draft legislation to do so. That legislation is subject to the scrutiny of courts, whose job it is to determine whether it violates the fundamental principles in our Constitution. That’s how our system works.
Marshall/Newman is an attempt at an end-run around this system. It would elevate one opinion on a controversial social issue to the status of a “fundamental principle,” and would foreclose on the right of future voters (“posterity”) to disagree with that opinion through representative government.
The definition of family is the subject of a conversation we are currently having as a society. It is our ability to have that conversation as a free people, with no foregone conclusion, that is a fundamental principle worthy of our Bill of Rights.
Monk ends her editorial with our challenge:
Virginia has a higher standard, and a higher responsibility, when changing its cherished Declaration of Rights. As Virginians, we have a special duty to defend the core idea of constitutionalism: that our highest form of law should express fundamental rights, not become a referendum on the issues of the day.