Federal Marriage Amendment - Bush Blew It

Bush blew it on the gay marriage question.  OK, we will give the President credit for picking a horse and riding it, while Sen. Kerry, his presumed opponent, hides in the barn with his handlers.

However, there are two questions at issue - where are we as a society going, and how do we get there?  Virtually all Republicans, and even some principled Democrats, can unite on the "process" question - this should be decided by the legislatures and referenda, rather than the courts, with the model being the Civil Rights Act, rather than Roe v. Wade.  Bush attempted to focus on process in his statement, and argued that the outcome has already been agreed, thirty eight states and the US Congress having spoken against gay marriage. 

As to outcome, however, there is a huge generational divide, public opinion is evolving, and time is against the opponents of gay marriage.  In such an environment, a constitutional amendment looks like an attempt to draw a line now that gay marriage opponents will not be able to hold in ten or twenty years.  More importantly, proper conservatives do not like to amend the constitution; Democrats would amend it every day of the week and twice on Sundays, and we need to oppose that sort of opportunistic tinkering.

So, Bush is half right on process - we want to keep this away from the courts - but wrong to support an amendment, and wrong to think that today's opposition to gay marriage will stand the test of time.

What he should have done is say that he opposes gay marriage, is willing to support (or at least, will not oppose) civil unions, and thinks this issue highlights the importance of electing a President who will appoint responsible Federal judges.

Based on the reaction of Tom DeLay, my guess is that we are seeing a bit of a Texas Two-Step here - having enunciated his principles, Bush will retreat, Congress will not act, and the FMA will take its place alongside the Flag Burning Amendment in the conservative retirement home.

Let's remember that Rudy Giuliani will be a prominent speaker at the Republican convention in New York City.  It's hard to imagine that a gay-bashing convention is what Bush and Rove are looking for, and Bush did conclude his statement with a call for "kindness and goodwill and decency".  In fact, we pity the poor fool at the RNC who has the unhappy task of digging up some gay Republicans to appear on the podium alongside the black Republicans.

MORE:  James Glassman is my new best friend on this issue.  And we love this Mitch McConnell quote so much, we are sending it out with a special dedication to Jane Galt, because we are huge fans with long memories.

"I want to be perfectly clear, I have no sympathy for those who desecrate the flag," said Sen. Mitch McConnell, R-Ky. "But the appropriate way to deal with someone who desecrates the flag might be a punch in the nose as opposed to evisceration of the First Amendment."

UNRELENTING:  Matt Yglesias is very interesting on poll data.  Meanwhile, I can not track down the survey that flickered by on television showing broad support for the FMA, or at least, I think it did - if I recall correctly the poll question was "Do you think that gay marriage policy should be set by (a) wild eyed, unelected, unaccountable judges, or (b) thoughtful elected officials representing their sensible constituents".  I think that the FMA supporters won, with 52% of respondents choosing (b).  But I might be kidding.

Comments

[Machiavelli]

"Democrats would amend it every day of the week and twice on Sundays." You got that right.

As a conservative myself I can't figure out how someone could carry the moniker yet call for a constitutional amendment. It makes about as much sense as a liberal calling for the US to leave the UN.

[Dave]

I think it's absurd to say that Conservatives must inherently oppose all Constitutional amendments, no matter their aim.

Re: Mitch McConnell-
Are you suggesting cultural oppression of gays instead of constitutional amendments?

[SamAm]

Texas Two-Step?

What about a president who means what he says...

and says what he means?

[Dave]

I think it's absurd to say that Conservatives must inherently oppose all Constitutional amendments, no matter their aim.

Re: Mitch McConnell-
Are you suggesting cultural oppression of gays instead of constitutional amendments?

[J Bowen]

If liberals are so keen to amend the Constitution then why don't they do it? For instance, why not an amendment for Roe v. Wade?

Is time really against the opponents? You state that as if gay marriage is inevitable, like they used to say about Communism. The fact is that we really don't know what a society with "gay marriage" will be like. Nobody seems to be considering what it will be like being a kid growing up in a world where homo- and heterosexuality are just "choices". And being gay is a choice. Let us raise a generation of kids who don't know what team they're on and don't think it matters and you might see the tide switch in a hurry.

Anybody who speaks of "discrimination" or "civil rights" really ought to be locked in a room with nothing but American history books until they're capable of a little intellectual discrimination themselves.

All this stink because some narcissists want to simplify some paperwork.

[James Brown (really)]

I can't remember a single constitutional ammendment that was seriously proposed by democrats in the time in between the Flag Burning Ammendment and this latest farce. So on what basis do you make your claim about them wanting to "amend it every day of the week and twice on Sundays?"

Or do you just like spouting off with inflammatory comments to an audience who isn't likely to call yoiu on it?

[John]

I'm a Democrat, but I hold no truck with willy-nilly amendments to the Constitution. Least of all this one, which would serve to codify bigotry. The FMA proponents would be happy to see gays permanently and officially consigned to second-class citizenship. It's deplorable.

[philsmith]

I always thought that one of the important constitutional role of the court was to protect minorities from the "will" of the majority.

As to "traditional values" check slavery a one time traditional value. Remember that segregation was, at one time, the will of the majority.

[Doug Gillett]

I, too, was going to ask exactly which Constitutional amendments the Democrats had proposed "every day of the week and twice on Sundays," but I see somebody beat me to it.

Really, a Republican lecturing Democrats on amending the Constitution willy-nilly is sort of like...well, it's sort of like George W. Bush lecturing John Kerry on accepting special-interest dollars. Try again, kids.

[Tonto]

Most of the reporting on gay marriage polling data misses important demographic nuances. For example, Blacks, Hispanics and Seniors are more strongly opposed than the general population. Those are typically Democrat voters, no? Hmmm.

Further. As a senior, myself, I've noticed that political views tend to evolve over a lifetime. It's too convenient to assume that younger voters will inevitably continue to support gay marriage as they mature, marry, and raise children.

[Scott Harris]

I think a better Amendment would be to establish some sort of Legislative and Executive review similar to Judicial review. Judicial Review dates back to Marbury v. Madison in 1803, and is not a Constitution power written in the Constitution. In response to that decision,Thomas Jefferson stated:

[On the] "question whether the judges are invested with exclusive authority to decide on the constitutionality of a law" ... Certainly there is not a word in the Constitution which has given that power to them more than to the Executive or Legislative branches."

[On the "ultimate arbiter" of the Constitution:] "The ultimate arbiter is the people of the Union, assembled by their deputies in convention, at the call of Congress or of two-thirds of the States. Let them decide to which they mean to give an authority claimed by two of their organs. And it has been the peculiar wisdom and felicity of our Constitution, to have provided this peaceable appeal ...

"The Constitution . . . meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch."

"To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. ... their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves."

"... our Constitution a complete felo de se [act of suicide] [if] intending to establish three departments, coordinate and independent, that they might check and balance one another, it has given, according to this opinion, to one of them alone the right to prescribe rules for the government of the others, and to that one, too, which is unelected by and independent of the nation. For experience has already shown that the impeachment it has provided is not even a scare-crow . . . The Constitution on this hypothesis is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please."

"My construction of the Constitution is . . . that each department is truly independent of the others and has an equal right to decide for itself what is the meaning of the Constitution in the cases submitted to its action; and especially where it is to act ultimately and without appeal."

So according to Jefferson, each branch has a right to say what is, and what is not Constitutional. Since Judicial Review is not actually a power of the Courts according to the Constitution, I think an amendment more clearly defining how we determine the Constitutionality of laws would be preferable to this amendment.

Obviously, Judicial Review has some merit. This need was overlooked by the founders. But if Judicial Review is going to be the practice of the courts, then it should be explicitly defined in the Constitution. In addition, since all Branches are co-equal, this amendment should include the powers of Executive Review, and Legislative review, and a mechanism for resolving Constitutionality issues when the three Branches of government disagree.

I propose an advisory panel in the Administration to advise the President, and a Legislative panel in either the Senate or the House, or perhaps both. Also, if a supermajority of the Congress is instituted, then a supermajority of the Court must also be required.

The power to Veto legislation was given to the President, not the courts in the Constitution. And a mechanism for overriding that veto is in place. The problem is that their is no mechanism for overriding the "veto" of the Courts. This should be resolved.

Then there would be no need for the FMA. The issue in most conservatives minds is the runaway judiciary, not gay marriage. Even though I personally oppose gay marriage, if Californians, and New Englanders want it, why should I care as a Texan. What I strongly oppose is the right of Californians and New Englanders to decide the issue for me without consulting me.

Remember "taxation without representation." It is the judicial oligarchy that must be overthrown. Then we are free to make our cases to the public without fear of judicial fiat.

[talkguy]

It ain't the Democrats who are eager to amend the Constitution. It's them conservative Republicans. Abortion. Balanced budget. American flag. Etc., etc. And now gay-bashing.

[TM]

...do you just like spouting off with inflammatory comments to an audience who isn't likely to call yoiu on it?

Mostly that. Roe v Wade rankles because I think the pro-choice could have won that argument if they had fought it out fair and square. However, the courts, rather than the amendment process, seems to be the preferred route for our activist friends. I don't, for example, notice any gay rights leaders suggesting that Congress ought to pass a civil unions law or repeal the Defense of Marriage Act. Why not?

My guess - they know the votes aren't there, but figure they will get lucky with some court, as in Vermont and now Massachusetts.

[TM]

As to "traditional values" check slavery a one time traditional value. Remember that segregation was, at one time, the will of the majority.

Both ended by Congressional and Executive action, rather than the courts - I am thinking of the Civil War and the Civil Rights Act, and side-stepping Brown v. Board of Ed.

Dan Drezner was fascinating on the inevitability of gay marriage, and the absurdity of this resolution.

http://www.danieldrezner.com/archives/000960.html

Finally, not all rightys are conservatives - the flag burning amendment had the support of the culture warriors, but not of the "let's take this one step at a time" crowd. Similar situation here.

[Chuck Pelto]

TO: Tom
RE: Gay Bashing?

Since when is being for marriage considered 'gay bashing'?

Looks like an interesting twist of logic and rhetoric to presume that 'marriage', a religious matter, is something other than that.

Regards,

Chuck(le)

[Brad DeLong]

An excellent Mr. T. imitation!

And, although I regret to have to say this, the MinuteMan has told a *lie.* We Democrats are not eager to amend the constitution. Not eager at all.

What we are eager to do is to just recognize what the constitution has always said, but what previous generations were too blinkered to understand!

ba-da-bum!

:-)

[John G. Galt]

I don't understand, where is the incompatibility between being conservative and amending the Constitution?

Federal and State Constitutions are under assault from "judges" who care more about their personal beliefs and desires than they do about the law.

This needs to stop.

How can President Bush stop it without a Constitutional Amendment?

The Democrats here are half right, the Democrat Party doesn't favor proposing Constitutional Amendments. Because that would decide things democratically, and they're opposed to that.

Democrats "Amend" the Constitution by getting "Justices" to declare that the "living document" Constitution has "evolved" to now say whatever it is the libs want (i.e. Lawrence . v Texas).

As for the "inevitability" of gay marriage, if its proponents really believed that, they'd be going the democratic route, rather than the court route

[John G. Galt]

Brad De Long writes:

What we are eager to do is to just recognize what the constitution has always said, but what previous generations were too blinkered to understand!

Brad, where does the Constitution come from? Was it a gift from God on high? Or was it written, voted upon, ratified, and amended, by people?

You know, the same people who "were too blinkered to understand"?

Do you believe in Democracy? If not, never mind, we have nothing to discuss. But if you do, then could you please tell us why your version of what they meant should be the only valid version?

Especially considering that you're trying to use your "version" to overthrow laws passed and supported by a current democratic majority?

[Ben]

Chuck, marriage is not just a religious institution it's a civil one as well. That's why minister priests rabbis etc say "the power invested by the state of..." Religions are free to recognize or not recognize gay marriage at their discretion. They are NOT free to impose their view on the rest of society. All the talk about the long tradition of marriage makes reference to the religious institution. A great example of this is Mexico. In Mexico you get married in the church and then ten minutes later at city hall. The state does not recognize a religious marriage and the church does not recognize a state marriage. This is in keeping with our seperation of church and state.

[James Brown]

Hey Galt,

Get a grip. What Brad meant was that the constitution was written to be open to interpretation. it was written with an understanding that societies change and adapt. That what was considered fine and dandy – slavery, denying women the right to vote – may one day be thought of as not so fine and dandy.

That's the reason the people who wrote, voted on and ratified the constitution, gave judges the role they did. It's called a system of checks and balances. And if you don't like it, yeah go try to amend the constitution. You'll fail. But you'll certainly work up a nice lather.

[russ e]

If gay marriage is to be legalized via judicial fiat, will polygamy be far behind?

I support gay marriage but I wonder about all the ramifications.

[Brad DeLong]

Re: "Brad, where does the Constitution come from? Was it a gift from God on high? Or was it written, voted upon, ratified, and amended, by people? You know, the same people who "were too blinkered to understand"? Do you believe in Democracy? If not, never mind, we have nothing to discuss. But if you do, then could you please tell us why your version of what they meant should be the only valid version?"

Because your version of the Constitution would throw Clarence Thomas in jail for the crime of miscegenation? Loving v. Virginia, you know.

[Scott Harris]

James Brown,

The point is that the writer did NOT give the courts that power; they just took it in Marbury v. Madison in 1803. That was the crack in the dam. Now the whole valley is flooding. Review my proposal above and tell me what is wrong with it. The Constitution gives the President the right to veto legislation, not the Courts. And it has a mechanism for overriding the veto of the President. We need a mechanism to override the "veto" of the Courts.

[John G. Galt]

Mr. Brown,

"Get a grip"? For what, pointing out that Brad's position is logically incompatible with a belief in democracy?

What Brad meant was that the constitution was written to be open to interpretation.

Say who? Other than Democrats who care more about advancing their agenda than they care about democracy and the rule of law?

it was written with an understanding that societies change and adapt.

Yes, it was. That's why we the founders included a process for amending the Constitution.
The question is, why would they include that long, drawn out process, if any 5 members of the Supreme Court can rewrite the Constitution at will?

Furthermore, at the point when our society "changes and adapts" to believe that this is an "equal protection" issue, no Court action will be required. Because democratic majorities will be voting into office people who will codify gay marriage into law.

That what was considered fine and dandy - slavery, denying women the right to vote - may one day be thought of as not so fine and dandy.
That's the reason the people who wrote, voted on and ratified the constitution, gave judges the role they did.

No, that's why we have the ability to amend the Constitution. In this case, it would be the 13th and 19th Amendments, not decisions by judges, that led to the changes. (You've never heard of the Dred Scott decision?)

[Bob Smith]

In response to Scott Harris' point regarding a veto of judicial review, the Canadian constitution contains the notwithstanding clause which allows the legislature to overule a judicial finding that a certain law is unconstitutional. The notwithstanding clause also has a sunset provision whereby it expires after 5 years unless renewed by the legislature. (In Canada there must be an election called at least once every 5 years)

Just a thought.

[John]

I, too, wish that it were unnecessary to amend the Constitution for this purpose, but, quite simply, we cannot trust the courts to "resolve" this issue appropriately, especially when rogue public officials - Mr. Newsom - simply ignore the law as it has been clearly written in California. Democrats don't need to amend the Constitution because the courts carry their water for them in that regard. One would think that, by now, Dems would have learned that the President says what he means and does what he intends to do. I am gratified that he has taken leadership in this matter, knowing full well that the leadership on the left - waffling and prevaricating - will nonetheless try to paint his action as "divisive." Sometimes you have to take a stand; I'm glad he is.

[Brad DeLong]

I would argue that the Fourteenth Amendment renders null and void all federal and state laws purporting to criminalize the marriage of people of different races. I would also argue that it took nearly 100 years for Americans to recognize that that was what it meant.

"John Galt" appears to want to argue that the Supreme Court had no business arrogating to itself the power to strike down miscegenation laws, and that whatever "equal protection" "and "due process" are, they do not give anyone the right to marry someone of a different race if a state legislature objects.

I think that's a sad thing to think.

[Brad DeLong]

Re: "As to "traditional values" check slavery a one time traditional value. Remember that segregation was, at one time, the will of the majority." Both ended by Congressional and Executive action, rather than the courts...

But Ol' Abe thought Dred Scott had been wrongly decided...

[Scott]

I want to add a constitutional amendment something like this: "The right of the people to keep and bear Arms shall not be infringed, and we really mean it."

[Christopher Jones]

James Brown:

There's a big difference between the kind of "openness to interpretation" that was involved in the two examples you cited (slavery and votes for women) and the kind of "openness" that is involved in the gay marriage debate today.

Those who wanted to abolish slavery and to give women the vote understood that the Constitution as it existed at the time did not support their position. Their solution to that problem was not to "interpret" it so that it meant what they wanted it to mean; their solution was to amend the Constitution to change explicitly what the Constitution meant. In the case of slavery, even fighting and winning the Civil War was understood not to be enough. The abolitionists understood that they also had to amend the Constitution.

In contrast to that, those today who want to change what marriage means know that they cannot achieve their goal by democratic, constitutional means - or, at the very least, they lack the patience to do so by the hard, slow work of changing hearts and minds so that they will be able to reach their goal by democratic means. Instead, they are relying on intellectually dishonest "interpretation" to give them the result they cannot achieve by legitimate means.

[Christopher Jones]

Ironically, by trying for a constitutional amendment, the social-conservative side in this debate is giving more respect to its opponents than it has received from its opponents. The liberal side has foregone the democratic process, and claims to have found its policy preferences in the Constitution. The conservative side has, by falling back on amendment as the only means of achieving its policy, in effect conceded that claim. They are saying, since gay marriage is in the Constitution, we must amend the Constitution in order to oppose gay marriage. Having the votes in the state legislatures, or (as in California) among the people via the initiative process, is not enough.

On top of that, after the liberals failed to go to the people to get a simple majority for their policy, the conservatives are going to the people and giving the liberals a head start of 33% of each house of Congress and 25% of the states.

[TM]

On my assertion that the Dems would be delighted to amend the Constitution willy-nilly, I have to admit my position would be the teensiest bit more credible if I could think of an example. Does someone want to throw me some rope here? And no, the rope is not for hanging, it is to pull me to shore.

All I have got so far is the Equal Rights Amendment (from my formative years), and this little-noted Hollings Amendment clarifying the ability of Congress to regulate campaign finance. Bother, that might actually be considered responsible relative to the current campaign finance farce, but I digress.

http://rpc.senate.gov/~rpc/releases/1997/SJRES18.LO.htm

[TM]

Since when is being for marriage considered 'gay bashing'?

It's not, and my point was that neither Bush nor Rove want to head that way. But I still have nightmares about Pat Buchanan's 1992 Convention speech (after which I had to choose between casting my working wife into the front yard, or voting for Bill). Depending on who speaks and how, this could be a similar disaster.

[Brad DeLong]

Kinda curious how eager people are to forget that the overwhelming number of slaves in America were freed not by a court decision, not by an act of congress, and not by a constitutional amendment.

They were freed by an act of executive discretion:

"I, Abraham Lincoln... by virtue of the power in me vested as Commander-In-Chief... in time of actual armed rebellion... as a fit and necessary war measure for supressing said rebellion, do, on this 1st day of January, A.D. 1863... order and designate as the States and parts of States wherein the people thereof, respectively, are this day in rebellion against the United States the following.... And by virtue of the power and for the purpose aforesaid, I do order and declare that all persons held as slaves within said designated States and parts of States are, and henceforward shall be, free; and that the Executive Government of the United States, including the military and naval authorities thereof, will recognize and maintain the freedom of said persons."

If you are upset at a judicial power grab, why not be even more upset at this executive power grab?

[John G. Galt]

Nice try, Brad.

I would argue that the Fourteenth Amendment renders null and void all federal and state laws purporting to criminalize the marriage of people of different races. I would also argue that it took nearly 100 years for Americans to recognize that that was what it meant.

I agree with Judge Bork on this one. I think that "Plessy v Ferguson" was correctly decided, because the States that passed the 14th Amendment also had racial segregation at the time, and saw no conflict between the two.

However, by the time "Brown v (Topeka, Kansas) Board of Education" rolled around, it was factually clear that "separate" was consistently "not equal". Since equality was written into the Constitution, and "separate" wasn't, that meant equality needed to win. IOW, Brown was poorly reasoned, but correctly (and rightly) decided.

So, please tell us: Was the 14th Amendment also an "Equal Rights Amendment" for the sexes? Should we be suing about "separate but equal" bathrooms and locker rooms at high schools?

I think that's a sad thing to think.

No, you don't. You think that accusing your opponent of being a "racist" if far better than actually responding to his points. That's why you did that. I'd be upset, but such behavior is par for the course when "liberals" have their logical fallacies pointed out. (Feel free to engage the actual logic of my argument, if you think you can.)

[Brad DeLong]

You think Brown was about marriage? That's genuinely weird.

But I'm happy with the position that Brown was correctly decided: that the meaning of the constitution changed (or, rather, that we learned what it had always meant) as we (or some of us) learned that Plessy v. Ferguson was wrong because "separate" could not be "equal"...

[Christopher Jones]

Mr DeLong

The Emancipation Proclamation, while inspiring, was and is unconstitutional and without legal effect. If that were not so, the constitutional amendment abolishing slavery after the war would have been unnecessary.

Its only legal justification was as an extraordinary "war measure" imposed on the states said to be "in rebellion." Once those states had been (forcibly) returned to the Union, they were once again sovereign states, and an amendment was necessary to override their sovereign right to maintain slavery.

[John G. Galt]

Brad tries to obscure yet another issue:

Kinda curious how eager people are to forget that the overwhelming number of slaves in America were freed not by a court decision, not by an act of congress, and not by a constitutional amendment.

They were freed by an act of executive discretion: [snip Emancipation Proclamation]

If you are upset at a judicial power grab, why not be even more upset at this executive power grab?

Are you really as ignorant of history as you pretend to be, Brad?

The "Emancipation Proclamation" did not, at the time proclaimed, affect a single person.

Let's take a look at the whole thing:

Whereas on the 22nd day of September, A.D. 1862, a proclamation was issued by the President of the United States, containing, among other things, the following, to wit:

That on the 1st day of January, A.D. 1863, all persons held as slaves within any State or designated part of a State the people whereof shall then be in rebellion against the United States shall be then, thenceforward, and forever free; and the executive government of the United States, including the military and naval authority thereof, will recognize and maintain the freedom of such persons and will do no act or acts to repress such persons, or any of them, in any efforts they may make for their actual freedom.

That the executive will on the 1st day of January aforesaid, by proclamation, designate the States and parts of States, if any, in which the people thereof, respectively, shall then be in rebellion against the United States; and the fact that any State or the people thereof shall on that day be in good faith represented in the Congress of the United States by members chosen thereto at elections wherein a majority of the qualified voters of such States shall have participated shall, in the absence of strong countervailing testimony, be deemed conclusive evidence that such State and the people thereof are not then in rebellion against the United States.

In other words, it was a political ploy. "Elect members to Congress, and this won't affect you." Its purpose was not to effect the release of slaves, but to keep the British (population strongly anti-slavery) out of the war on the South's side, and to try to get the South to rejoin the Union, while keeping their slaves. Furthermore, it limited itself to orders to the Executive Branch, imposing nothing on Congress or the Courts.

What's it like being so intellectually dishonest, Brad?

[John G. Galt]

If you are upset at a judicial power grab, why not be even more upset at this executive power grab?

Because the Executive is accountable to the people (it's that whole "democracy thing, again"), and the Judicial branch isn't. So, when the Executive pisses off The People, we get to replace him (or vote against his chosen successor) in the next election.

We don't get to do that with judges.

[j king]

Mr. Delong,

Read your excerpt from the Emancipation Proclamation again. "The States and parts of States wherein the people thereof, respectively, are this day in rebellion against the United States." In other words, Lincoln only purported to free the slaves in those areas where his writ did not run, the Confederacy. Slaves in Union states such as Maryland and in the portions of the Confederacy that were under Union control were expressly NOT covered by the Proclamation; not a single slave was freed by the Proclamation. The Thirteenth Amendment freed all slaves.

[gazzer]

I was tickled to see Brad Delong participating in a healthy debate on this blog. You see, he recently banned me from his blog after I gently took the wrong side in a "debate" such as this one (he's apparently done this to Donald Luskin also). The result of this policy, clear for all to see, is a tame blog in which everyone preaches to the converted.

Remember folks, healthy debate is better for everyone. Sites like this one and Jane Galt's will always command a broader and more intelligent audience than those that target like-minded people only.

[John G. Galt]

You think Brown was about marriage? That's genuinely weird.

No, I think Brown was when the Supreme Court stopped supporting "separate but equal", including WRT marriage. Would you care to claim differently?

But I'm happy with the position that Brown was correctly decided: that the meaning of the constitution changed (or, rather, that we learned what it had always meant) as we (or some of us) learned that Plessy v. Ferguson was wrong because "separate" could not be "equal"

I'm sorry I strained your reading comprehension abilities, let me rephrase just for you:

Everyone involved with "Plessy" agreed that the 14th applied to discrimination based upon color of skin, and not to discrimination based upon sex (thus the attempt to pass the ERA, and the need for the 19th Amendment), religion (see the various "Blaine Amendments"), or sexual orientation.

"Brown" did not change that.

"Plessy" looked at the practice of those who passed the Amendment, noted that they didn't think the Amendment was incompatible with segregation, and deferred to that belief.

60 years later, by the time of "Brown", the evidence was in: whatever the original proponents believed, the fact was that separate was not equal. So, the Supreme Court correctly went back to what was written. And since "equal" was written in the Constitution, and "separate" wasn't, they went with what was written.

They didn't, however, change the known topic of the Amendment, and decide that the phrase "All persons" meant that women were now covered by the Amendment, too (and thus that the ERA wasn't needed, because it was already in there).

I have no problem with judges admitting failure, or mistake. I have a great deal of problem with judges "discovering" that the Constitution "means" something beyond the imaginations of those who voted in that part of the Constitution. If you really cannot grasp that distinction, you have my pity.

[mike]

" That's why minister priests rabbis etc say "the power invested by the state of..."

Which church does that? I've never heard that except on TV and on a McWedding in Vegas.

No church I know of would use that language.

mike

[tom kid]

If this equal protection thing works out, can I marry my 79 year old grandmother?

I'd sure like to get her estate tax free.

tom

[Michael]

No one here seems to have mentioned that 6 out of 7 judges on the current Mass. SJC were appointed by Republican governors. A breed of Republican which seems endangered these days, when theocrats have taken over the party.

For all those so concerned with process, what about Loving v. Virginia? 90% of whites were in favor of anti-miscegenation laws, yet the courts overturned the democratic will of the people. Do you feel outrage? Probably not, because you (hopefully) agree with the outcome.

Also I don't understand the hysteria on the right. The Mass. court made its ruling, but its decision could (and probably will be) overruled by a state constitutional amendment, which the people will vote on. The California marriages will undoubtedly be ruled illegal. I seriously doubt the Supreme Court will mandate gay marriage, or undermine DOMA. I don't see where the people's democratic voice has been lost.

[Scott Harris]

Tom,

I know you are joking, but that is EXACTLY where this thing is headed.

[jim]

I'm not sure homosexuals should fear a constitutional amendment prohibiting their marriage. The government and courts have twisted and trampled the Constitution whenever it suits them. Just deja vu all over again.

[Marty]

Re: the comment by "J. Bowen" that "being gay is a choice." Last I checked it was 2004, not 1804. Let's all say it together, boys and girls: "sexual orientation is NOT a 'choice.'" If it were truly a choice, then all those people like Mr./Ms. Bowen who so assert should be able to take a fling on the other side whenever they wanted to. Let me know how it works out.

[John Mendenhall]

There needs to be a constitutional amendment defining the latitude of courts. If courts are to write law, they must be subject to oversight. At present they have none. Courts do such things as rule unconstitutional the Pledge of Allegiance, and then back off when the firestorm hits. In this case, the justices demonstrated that the Constitution was whatever they figured they could get away with. Not getting away with it, angels of the lawyers' Lord descended and led them to Glory, or at least to backing down from what seemed to them just a couple of weeks earlier writ by Franklin, Jefferson, Hancock et al.

Michael, it is not consistent with being a resident of a country with the rule of law to say that "the California marriages will undoubtedly be ruled illegal." They are already illegal, the voters of California having passed 60-40 a statute defining what marriage is, and is not. The mayor of San Francisco and many city employees will happily state they're currently breaking the law. To justify their behavior, they will cite silly unrelated cases from yesteryear, and make the even sillier claim that homosexuals being thwarted in this quest are analogous to black people emerging from slavery.

Again, when the law is whatever unsupervised individuals believe they can get away with, there is no rule of law. There is only rule.

I don't care much about "gay marriage," though it seems silly to me: who gives a damn who gets the house when two grown men part ways? Administrative solutions abound to the mainly administrative problems homosexuals cite: inability to share insurance coverage, get family leave, etc.

Marriage law, on the other hand, exists for many ancient reasons, chief among them being the prevention of the impoverishment, ravishment, and ruination of women and children by divorce and the misbehavior of men.

It is not really, is it, of consequence to society whether Helen or Ellen keeps the dog, or whether Ray or Jay gets the sailboat? (To be fair, the same can be said when the dissolving partnership is Mr and Mrs Jones).

But it is of critical, central concern that Mrs Jones and the little ones have somewhere to live, something to eat, and a ride to school.

[Brad DeLong]

Re: "The result of this policy, clear for all to see, is a tame blog in which everyone preaches to the converted."

Are you... insane?

[Brad DeLong]

Re: "not a single slave was freed by the Proclamation."

Lincoln promised on January 1, 1863 that the "Executive Government of the United States, including the military and naval authorities thereof, will recognize and maintain the freedom of said persons" freed by the Emancipation Proclamation. It was my impression that U.S. Grant, William T. Sherman, and their troops recognized and maintained the freedom of a hell of a lot of ex-slaves between January 1863 and April 1865.

It is heartening to see someone willing to maintain their principles far enough to call the Emancipation Proclamation unconstitutional and null and void...

It is disheartening to see "John Galt" confusing Lincoln's announcement that he would make an emancipation proclamation with the Emancipation Proclamation itself...

And I'm not sure that it is heartening or disheartening that nobody will say that Loving v. Virginia was wrongly decided...

[TM]

OK, we're Loving it - I will venture that Loving v. Virginia was correctly decided, but does not really count as judicial activism since it followed the spirit if the Civil Rights Act of 1964. Cautionary note - that tepid conclusion follows from about five minutes research of a subject waay outside my area. The opinion is here, and here is the 14th Amendment.

On another point, I would say Brad DeLong's blog is about as tame as a Britney Spears video. I don't think that word means what you think it means.

[Jody]

John Mendenhall:

Actually, the need to protect their spouses and children is a primary motivation of gays seeking the right to marry.

[Gary Rambo]

"More importantly, proper conservatives do not like to amend the constitution; Democrats would amend it every day of the week and twice on Sundays, and we need to oppose that sort of opportunistic tinkering."

Does "proper" leave enough wiggle-room to jettison the flag burning, term limits, balanced budget and other opportunistic Republican wedge issues? Can you name the last Democratic attempt to amend the Constitution? Prediction: the next amendment (after your FMA) will be to enable a certain properly conservative Austrian-born individual to run for President.

[TM]

I have a bit more on the history of Loving v. Virginia, and I am finding traction on the comeback trail here. Supporting my position that the case is not a good example of judicial activism is this:

The way that the Supreme Court approached the ban on interracial marriage is a revealing reminder of the cautious manner that the tribunal typically deals with volatile social controversies. It encouraged other lawgivers to lead the way. In 1948 the Supreme Court of California ruled that that state's ban on interracial marriage violated the federal constitution's Equal Protection Clause. Yet, even after having invalidated de jure segregation in public schooling in Brown v. Board of Education, the U.S. Supreme Court was afraid to touch the emotional issue of interracial familial intimacy. In 1955 the Court considered reviewing a conviction under Virginia's ban, but ultimately decided to duck the issue. During the following decade, a dozen states repealed laws prohibiting interracial marriage and the Civil Rights Movement challenged the white supremacist notions from which these prohibitions stemmed. Only near the end of that remarkable era of struggle against racism was the Supreme Court willing to rule on the (un) constitutionality of anti miscegenation laws. In Loving, the Court struck down Virginia's statute on the grounds that it represented merely an "invidious racial discrimination" and that it unjustifiably deprived the defendants of one of the "basic civil rights of man."

[Buster]

Bush blew it? I don't think the gay folk need any help when it comes to blowing.

[Buster]

Bush blew it? I don't think the gay folk need any help when it comes to blowing.

[Pouncer]

Brad De Long writes:

"What we are eager to do is to just recognize what the constitution has always said, but what previous generations were too blinkered to understand!"

Well, sort of, and I sort of agree. Except "we" generally seem to want certain urbane, cosmopolitan, well-credentialed, and life-tenured
-- i.e. NON-representative -- officials to make decisions for the general run of rustic, provincial, experiential, and insecure citizens.

Why not establish a priesthood and be done with all this democratic nonsense? "We" can set up some sort of papacy or cardinal's chair in Boston or Berkeley where "our" sort of noble-minded, kind-hearted, and powerfully-armed of advocate-general can, like Janet Reno, decide on behalf of the idiots in Florida, Texas, or other benighted (I'm sorry, I mean "blinkered") locales which sorts of families have legal standing in court and which should be separated at gunpoint; which cults are to be tolerated and which burned as heretics; how much to jigger grades and SAT scores for what applicants of which skin-color that "we" will admit to (or filter from) "our" universities; which children may be educated at whose expense in whose choice (except, of course, for the parents') of school...

Otherwise, don't "we" risk outright rebellion, where the governed simply refuse to remove their outmoded blinkers and fail to consent? And really, shouldn't we enact some sort of law prohibiting states that have some sort of foolish procedure of ELECTING judges? "We" should return to the time-tested practice of letting the American Bar Association select appointees, shouldn't "we"?

The example of divorce provides a long history of the abuses possible under the "full-faith-and-credit" clause. Why, when Nevada provided for easy divorce and New York raised difficult restrictions, the impact was tremendous. Millions (well, perhaps hundreds -- I don't have time to look up the actual data right now, I'm on a rhetorical roll...) of people suffered ENORMOUS (again, you can look up the statistics, if you want. ) financial and emotional trauma by having to take up residence in a different state, temporarily, to get the divorce they wanted but could not get at home. How much better, simpler, and more "democratic" simply to impose, from the advocate general's chamber, one rule for all divorces that would have applied in New York and Nevade just alike.

So, too, the very question of "home". Why should the hicks in the sticks be permitted to live in squalid substandard apartments paying exorbitant market-based rents -- and the benefits of rent control be restricted to a few cities such as New York or San Francisco? Surely we see that what is a good idea in these most urbane and cosmopolitan of locales is likewise, always, and everywhere just as good. Rent Control in Kansas City, in Peoria, in Springfield ... So too with the minimum wage. Why now states have the audacity to set "minimum" wages higher, or lower, than the federal standard! Outrageous! One wage, for all markets -- just as we expect one definition of "marriage" for all, and THAT established by the cardinal of San Francisco!

Or mayor. Whatever.

But I could be wrong. Perhaps rent control is a BAD idea. Brad? Perhaps raising the federal minimum wage is, too (although John Kerry certainly makes the idea sound -- uhm, well, "interesting" is overstating the case a bit. Kerry makes it sound like a serious and solemn proposal, anyhow.) Again, I defer to the economic expert.

And perhaps, good or bad, ideas and laws need NOT be imposed by one jurisdiction upon another, nor rural districts impose their puritan "community standards" upon the (depraved?) citizens of urban centers, nor again should EVERY question be resolved by judicial recourse to a two-centuries-old parchment written without an inkling of that question in mind.

I grew up in Kansas, near the Missouri border. The history of how our Eastern "betters" attempted to decide the issue of slavery on our behalf -- whether we were to be a slave state as dictated by the politics of Missouri Compromise, or a free state as the economics of the dry plains demanded -- left me a bit predisposed to doubt that even titans like Clay, Calhoun, and Webster had crafted an outcome that would have satisfied the 19th century Kansans. It's been suggested that had the Missouri Compromise not given promise to the South, new states would have been free states, and the slavery question would have been peacefully settled in another generation or so without a Civil War.

Topeka's schools, the topic of "Brown v Topeka" too were a local problem in which our learned betters far away granted us their wisdom. The outcomes have been declining performance in Topeka and everywhere -- federal judges overruling local school boards and mandating expenditures on facilities the schools had not requested -- imposing taxes upon communities too impoverished to pay them -- and so requiring state-and-federal subsidies (and control) and priorities. And academic performance has NOT been the top priority of such officials. But we Kansans have been too blinkered to understand that the color of the student's skin is more important than the quality of his education.
(It's also terribly important to various folks in far away places that the state school board parrot the star-chamber's gnosticism regarding evolution -- God-who-is-NOT-the-Creator forbid that local elected officials attempt to set local policy!)

Strangely the issue of miscegenation was not decided on the basis of a Kansas case. Probably because such segregated-when-settled rural communities of Lindsborg (Swedish) St Mary's (Irish?) Lebanon (obvious...) and Nicodemus (the refuge of escaped black slaves) all wound up intermarrying across county lines without a lot of fuss.

But my personal reminniscences distract me from my point. I agree it would be MUCH simpler to have an enlighted judge reveal to us all what lies outside our caves -- what the dancing shadows have long hinted at and we have been too mis-oriented to perceive. How nice. But so far I do not have ground to agree that such judges have vastly better perspective on the issues than voters. Brad, do you really want Thomas, Scalia, and whoever the Shrub appoints next to "vote" on this issue on YOUR behalf?

[TM]

Pouncer, stop by with the rhetorical roll and a cup of coffee anytime. LOL.

[Brad DeLong]

Re: "'What we are eager to do is to just recognize what the constitution has always said, but what previous generations were too blinkered to understand!' Well, sort of, and I sort of agree. Except 'we' generally seem to want certain urbane, cosmopolitan, well-credentialed, and life-tenured
-- i.e. NON-representative -- officials to make decisions for the general run of rustic, provincial, experiential, and insecure citizens."

Well, I thought that what "we" wanted was for Clarence Thomas not to be thrown in jail for marrying a white woman...

[Brad DeLong]

Is the point that Loving v. Virginia is not really a case of "judicial activism" for some reason?

[TM]

Is the point that Loving v. Virginia is not really a case of "judicial activism" for some reason?

Yes. And we are feeling very crafty about that. I have a longish post expounding that point here:

http://justoneminute.typepad.com/main/2004/02/and_loving_it.html

[Brad DeLong]

Clever but not fully convincing. You say that the Constitution is a living document, it's just not very healthy. Instead of bounding about like a squirrel, its movements must be slow and hesitant so as not to strain its heart.

If I were you, I would take refuge in Edmund Burke, and argue about the Emancipation Proclamation and Loving v. Virginia what Burke argues about the Glorious Revolution: it was a horrid deviation from established practice, a violation of the legitimate order, not to be taken as a precedent, never repeated, and yet absolutely necessary and a good thing...

Burke's theory is kinda like Ackerman's theory of "constitutional moments." They happen, afterwards the Constitution is read to say something different, but between "constitutional moments" precedent rules.

The problem is that Ackerman never identifies when you are allowed to have a "constitutional moment." So I keep waiting for Rehnquist to turn to Scalia and say, "Well, Nino, I feel like it's time for a constitutional moment right now. Don't you?"

(Some say that Rehnquist's and Scalia's strange attachment to "equal protection" arguments in December 2000 was such an... ahem, "unconstitutional moment.")

[Pouncer]

Why not define a federal constitutional moment based on the number of states' constitutions that reflect the new consensus?

If enough states constitutionally prohibit the death penalty, then it must be both cruel and "unusual", right? If enough states encourage women to vote, then it becomes a right. On the other hand, if only a few activists want to prohibit booze, then it's a bad idea.

How many states still had miscegenation prohibitions on the books when "Loving" was decided? 16? So we already had about a 3/4th majority decided the other way...

[Brad DeLong]

Interesting idea...

Of course, it doesn't deal with the fact that the Constitution said from the day it was written ("secure the blessings of liberty") that anti-miscegenation laws were unconstitutional, and it just took us 180 years to properly understand it...

:-)

[Pouncer]

"it just took us 180 years to properly understand it..."

Y'know, I'm perfectly willing to join you in rejecting post-modernism. We might agree there is an absolute right and wrong way to define "liberty" , independent of time or location. Let us agree that many of our forebearers failed to perceive that correct and eternal definition in days, decades, and centuries past. Let us agree, too, that even today many of our neighbors err and need correction.

Questions remain. WHICH neighbors? And -- the pair of us agreed that some third party errs --what corrections?

Were you the pope and I, by divine right, emperor; we, being reasonable and inspired men, might no doubt come to the correct determination. But in this imperfect world, which fails to appreciate either of us properly, and has awarded neither of us the powers appropriate to our discernment, we rely instead upon the imperfect political process.

That process has determined for Californians legal toxicity of various substances, independent of their chemical properties and differing from those in other jurisdictions. In the interest of society, California political processes have determined rents independent of markets, and electrical rates independent of demands or production costs. The epidemiological response to contagious AIDS balances a patient's privacy and the public's health upon a scale crafted in California.

We can agree, I think, that it is only the passage of time that reveals the degree of correctness in our local and contemporary understanding of that absolute, perfect, universal and eternal ideal of truth, justice and
the American Way. We may never become a perfect society, but the constitution sets before us the process of, over time, "form a MORE perfect" (i.e. more NEARLY perfect) society. But the examples cited from times recently past suggest that California is NOT the source of gnostic wisdom to guide us all to that enlightened condition.

[Chad Lockey]

Some of you liberals need to wake up. Since when are homosexuals a race of people? You are lumping homosexuals right in there with normal human beings such as African Americans.I'm sorry but denying a man and a man or a woman and a woman access to marriage can not be compared with the way blacks were treated in our history. If I were an African American, I think I would be very offended that what my people had to endure was being campared to the issue of "gay marriage". God created marriage for one man and one woman only. Homosexuality is an abomination to God. If you do not believe in God, you will one day. You will one day face Him and worship him. The Bible says " for all have sinned and fall short of the glory of God." I am not condeming homosexuals. They, like everyone else are sinners who are in need of forgiveness by the only one who can forgive them of their sins. The one who can forgive them is Jesus Christ,Gods one and only son, who died upon a cross for their sins .If they will confess their sins to Jesus, and accept Him as their Lord and savior, He will come into their heart and save them from eternal damnation. If they deny the TRUTH and reject Christ, they will perish in Hell forever.This sounds harsh but it is the TRUTH and salvation is available to anyone who will confess their sins to Christ and accept His free gift of salvation. You have read this message, now it is up to you what you do with it.

[jd]

That seems like the perfect place to declare the commenting over [rolls eyes].

[PJ]

For the more sound minds out there.

I think Bush has the final word on this. He has several options at his disposal that he could use:

1) Weekly addresses - Bush could use the power of his position to keep this issue before the population. I do not believe that the majority of Americans nationally want homosexual marraige. That fact get ignored because all we get the se if the local news reports from the few rouge stats that are in support of it.

2) Appropriations-With-Strings - The Bush administration, like all the other administrations, has requently tied their giving to conditions. A couple of years back the feds told the states if you want money to fix your highways....lower your speed limits to 65 mph. The republicans who hold the majority with Bush could do the same thing here.

3) Money, money, money. The main reason candidates who run for office like to get lots of money is because it can buy advertising. Use some of the millions the GOP has to start it's own "grass roots" campaign against homosexuality. No violence just marraige is their motto.

4) Executive Order - Bush could simply issue an executive order stating that as far as he is concerened in America marraige is between one man and one woman. This would take the states completely out of the picture, for now, and force both houses of congress to act. Either to enforce or repeal the order.

Correct me if I'm wrong there.

And for you people out there who think that homosexuality is ok.

Just remember this. You are here not because of two men or two women who were married or had sex. You are here because of one man and one woman who were married or had sex. Ther life you want to live will ultimately lead to your own destruction. And if you don't think so. Explain to me how you intend to cary on your name? By taking a kids you maid with someone from the opposite sex and bringing them into your new world? Or do you intend to get your partmener a sex change just long enough to concieve a child? I'm listening....

[Eugene Franco]

Boy oh boy.. some people still want to eliminate the separation of church and state.