What Conservatism Tells Us About Gay Marriage, Part 3 (UPDATED)

Having established that defending marriage is an imperative for all who call themselves conservative, the only question left is how. It goes without saying that conservatives should pursue initiatives to define marriage as a monogamous man-woman union in their state constitutions, just as they should support the federal Defense of Marriage Act, which protects states from being forced to recognize marriages from other states.

Conservatives should also vigorously oppose judicial activism, by working to educate the American people on the original intent and plain meaning of the Constitution, fighting for candidates who will nominate and vote to confirm originalist judges, and applying intense pressure to politicians who even think about voting for judicial activists. Conservative presidents should use the bully pulpit of the presidency to condemn decisions that abuse or circumvent the Constitution.

But is there more that can be done to thwart judicial activism? In Men in Black, Dr. Mark Levin argues that there is. He notes that Article III of the Constitution gives Congress the power to place some limits on the jurisdiction of courts, and that Article II gives Congress the power to impeach “all civil officers of the United States.” While useful, Levin doubts that these tools will be sufficient to effect a lasting solution to the problem. Instead, he suggests amending the Constitution to limit judges to fixed terms of office:

[S]itting judges and justices could be renominated and subject to a new confirmation process. This way, outstanding jurists could remain on the bench for a lifetime, pending congressional approval. And clearly defined terms of office would limit the influence of any single Congress in controlling the ideological bent of the Court. These changes would add accountability to the federal bench.

Levin also suggests a second amendment:

The most meaningful step Congress could take would be a constitutional amendment limiting the Supreme Court’s judicial review power by establishing a legislative veto over Court decisions – perhaps a two-thirds vote of both houses. The rationale is the same one the framers used when creating the congressional override of a presidential veto as a check on the president’s power. The framers worried that a president might amass too much authority. Today, the problem is an oligarchical Court, not a presidential monarchy, supplanting the constitutional authority of the other branches.

Indeed, perhaps the only major error the authors of the Constitution made was, in their desire to set the judiciary apart from the more overtly political branches of government, not placing any major checks on the judiciary comparable to the checks on the other two branches. While there’s certainly room to debate the details of these amendments, it seems clear that conservatives should support constitutional reforms to more fully realize their vision of a limited, constitutional republic safeguarded by an evenly-balanced separation of powers.

Lastly, there’s the matter of amending the Constitution to directly address marriage. Such an amendment could take one of two forms: either specifically protecting the right of states to set marriage policy regardless of what courts or other states do (essentially making DOMA ironclad), or simply defining marriage as a monogamous man-woman union in all fifty states. Because the first simply protects states’ rights and curtails judicial activism, there shouldn’t be much controversy on the Right about whether or not it’s worth supporting.

The second, however, is more contentious, because it defines marriage for the states, allegedly undermining our commitment to federalism. While this concern is well-intentioned and springs from genuine conservative principles, it shouldn’t prevent conservatives from supporting this amendment. For one thing, the principle of federalism isn’t unlimited – Article I, Section 10 places quite a few restrictions on states:

No state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility.

No state shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing it’s inspection laws: and the net produce of all duties and imposts, laid by any state on imports or exports, shall be for the use of the treasury of the United States; and all such laws shall be subject to the revision and control of the Congress.

No state shall, without the consent of Congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.

Article IV, Section 3 forbids states from forming new states within their own borders, or combining with other states into new states, Section 4 says that every state must have “a republican form of government,” and Article VI forbids “any office or public trust under the United States” from requiring a religious test for eligibility. And of the twenty-seven amendments to the Constitution thus far, many place further restrictions on what states can and cannot do. As long as we do so lawfully (i.e., by amending the Constitution), there’s nothing preventing us from settling certain issues federally if they’re determined to be important enough.

As a practical matter, most of the states want to protect traditional marriage and the amendment process asks for the approval of a supermajority of states anyway, so enacting a Federal Marriage Amendment would still respect the will of the people and give the states a voice in the decision. The burden placed on states would hardly be an onerous one – in forbidding states from granting marriage licenses to same-sex couples, it would still allow states to determine what requirements and benefits civil marriage entails within their borders. And given how important the Founders thought marriage was to the character of the entire nation, it’s certainly reasonable to deem the fundamentals of marriage important enough to enshrine in the Constitution.

Besides, as important as theory is, in reality these decisions are not made in a vacuum. We’re grappling with these questions in a world where judges are usurping the law to destroy marriage and make policy decisions for us. William F. Buckley certainly understood:

We are reaping a whirlwind, and direct intervention in the holy tabernacle of the United States Constitution is eminently justified. Either that, or we will simply be surrendering the evolution of the law into the hands of the judiciary. An interesting argument could be made to the effect that rule by justices might be an improvement on rule by congressmen and state legislators. Of course we are not attempting to make any such reassignment of power when we balk at a constitutional amendment, though in fact we are.

There is nothing in sight, given the decision of the Massachusetts court, and the decision of the U.S. Supreme Court last June overturning the Texas sodomy law, to curb the evolution of “marriage” to signify simply an affectionate relationship between two or more people, with cross commitments of one kind or another. The rules for entering into such a union — man-man, woman-woman, widowed sisters, father and son — might differ here and there, so long as those differences were not held to violate the equal-protection clause of the Constitution, or other of its provisions. In the absence of an amendment, the fight is simply abandoned, and Darwinian mutations are, if not exactly encouraged, nevertheless indulged.

To argue that a constitutional amendment is radical, while acquiescence in the anarchy of the Massachusetts court is less than that, staggers the mind. It has become easier to amend the Sermon on the Mount than the Constitution, and it is strange and awful that passivity is urged in a republic of free people.

When the alternative is marriage’s destruction and submission to the rule of judicial oligarchy, the choice is clear: conservatives shouldn’t hesitate to support either amendment.

UPDATE: Here are two great essays on the subject of federalism and gay marriage – one from Stanley Kurtz in National Review, and another from Edwin Meese & Matthew Spalding in the Wall Street Journal.

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