Fred Thompson & the Diet Marriage Amendment

Fred Thompson opposes the Federal Marriage Amendment on the grounds that a nationwide definition of civil marriage would violate the principles of federalism. Instead, he has proposed a constitutional amendment that would exempt states from having to recognize out-of-state same-sex marriage licenses and bar judiciaries from redefining marriage. I believe this idea (let’s call it the Diet FMA) is a poor substitute for the FMA most conservatives advocate.

First, amending the constitution is a difficult task which will require considerable public support. And the motivating force behind social-conservative turnout for President Bush and for the numerous state marriage amendments that have won sure as heck wasn’t constitutional theory (important though federalism may be, dry legal theory is largely the domain of policy wonks and pundits, not the average voter). It’s their belief that marriage as a man-woman union is a central tenet of civilization that drove them to get out and fight for results. Simply put, I very much doubt the Diet FMA would energize people into the same kind of turnout that the actual FMA would.

The second problem is with the federalism angle. The principle, that most decisions are rightfully those of individual states to decide and that the proper scope of the federal government is very limited, is an important one which should be restored to prominence in American governance. However, the same Founding Fathers who set the precedent of federalism also gave us a system of amendment by which certain values & provisions, if they meet the high bar necessary for ratification, can be enshrined at the federal level. There’s an
abundance of precedence for this—the Second Amendment prevents every state from abridging the right to bear arms, under the Eighth no state can impose excessive bail or fines, slavery is banned everywhere under the Thirteenth, and the Fourteenth says no state can deny the equal protection of the laws to people within its jurisdiction. With this in mind, it’s wholly legitimate for those who believe in marriage’s societal importance to say, “We believe this is so central, so basic a principle to a stable & healthy society, that we want this to be a national standard” (and there’s a powerful case to be made that marriage meets that standard). I would remind those averse to the FMA on federalist grounds of certain language in the Tenth Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” In other words, it says federalism, though important, stops at the Constitution’s edge.

The path to amendment is a difficult one, and rightfully so. It should be reserved for all but the most important issues to American society. Ultimately, it all comes down to how important one views marriage—and how much one wants
a candidate who thinks it’s equally important.
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