Constitution

Thoughts on Secession, Part 1

Calvin Freiburger civil war, conservatism, Constitution, democracy, Founding Fathers, Hillsdale, history, http://schemas.google.com/blogger/2008/kind#post, limited government, Paul Rahe, Robert Stacy McCain, secession, South, states

On Monday, Hillsdale College history professor Dr. Paul Rahe (disclosure: I’ve heard him speak several times, but am not one of his students) marked the 150th anniversary of South Carolina’s vote to secede from the union by penning an op-ed in which he argues against the legitimacy of secession:

The legitimacy of secession has been debated ever since. In my view, secession was unlawful. There is provision in the United States constitution for ratification and for the admission of new states into the Union. There is no provision for secession.

It is true, of course, that – in ratifying the Constitution – Virginia specified “that the powers granted under the Constitution, being derived from the people of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression.” But this unilateral assertion on Virginia’s part is not and could not be an assertion of a legal right under the Constitution – which, even if viewed as a contract, recognizes no such right. Rather, it is a reassertion of the natural rights that underpin the right to revolution asserted in the Declaration of Independence, and it applies to the people of the United States and not to the state of Virginia or even the people of the state of Virginia as such.

Robert Stacy McCain objects to Rahe’s analysis, seeing in it disastrous implications:

Of course, this theory effectively abolishes the states, rendering them nothing but administrative jurisdictions of the unitary and all-powerful national government — the negation of federalism […]

Did these states, by ratifying the Constitution, thereby permanently forfeit their independence?  Is there nothing the federal government could do — no act of the president or Congress, no decision of the Supreme Court — that would justify any state in saying, “OK, you’ve gone too far now”?

It would seem that Paul Rauh answers that question in the negative, that he denies that the states have retained any shred of their original independence, that no state has any just recourse if its citizens should feel that the federal government has overstepped its rightful bounds.

The states are therefore no longer states in any meaningful sense, and we no longer in fact have a federal system of government, but rather one vast unified empire of 300 million subjects, with whatever vestiges of the “states” remain being subject to obliteration so soon as it suits a majority in Congress (or the Supreme Court) to do so.

Ideas have consequences, as Richard Weaver once famously observed, and so it is with the idea of the indissoluble union. (Evidently, it’s like La Cosa Nostra — once you join, there’s no quitting.) What we now have is a national government without any effective limit to its power, except so far as regular elections may have any limiting effect. But if this also fails and the advocates of an all-powerful national government should obtain a permanent majority, what remedy can there be under Rahe’s theory?

First, the notion of states as “nothing but administrative jurisdictions of the unitary and all-powerful national government” simply has no basis in Rahe’s words. To deny secession’s legitimacy is hardly to deny that the federal government’s powers are strictly limited, or that the states have rights and responsibilities in which the feds must not meddle. (Rahe did, for what it’s worth, write a book on the subject.)

Second, there are obvious recourses to injurious federal actions: the regular elections McCain references, the constitutional amendment process, and prior to the 17th Amendment’s passage, the Senate also countered federal encroachment into the states. There’s also the judiciary, though admittedly that won’t be of much use to limited, constitutional government until we get serious about reining in judicial activism. (And all of the above is, of course, subject to the quality of those in office, but that’s unavoidable with any form of government.) I wouldn’t be so quick to discount the value of any of those means, and in the block quote at the top of McCain’s post, Rahe does give the states a “just recourse” when all else fails: the natural right of revolution. As the Declaration of Independence puts it:

[W]henever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness […] when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

The standard pro-secession objection here is that a) revolution is extra-legal, meaning the government from which a state is separating has no legal obligation to let the state go; and b) revolution is a right possessed by individuals, not states. McCain seems to think that the American Revolution’s “dependen[ce] on the fortunes of war” is sufficient to invalidate the right of revolution. But so what? In principle, whether something is easy has no bearing on whether it’s true, and in practice, the prospects of the South’s “right” to secession were every bit as “dependent on the fortunes of war” as the War for Independence.

Granted, I can see where the other side is coming from, in that secession could theoretically be easier than revolution, and thus might be a more potent threat to an overreaching federal government. But secession’s supporters are overlooking a very big downside, which Abraham Lincoln’s First Inaugural Address makes clear. First, there are the logical problems inherent to the concept:

Perpetuity is implied, if not expressed, in the fundamental law of all national governments. It is safe to assert that no government proper ever had a provision in its organic law for its own termination […] If the United States be not a government proper, but an association of States in the nature of contract merely, can it, as a contract, be peaceably unmade by less than all the parties who made it? One party to a contract may violate it—break it, so to speak—but does it not require all to lawfully rescind it?

More importantly for our current purposes:

If the minority will not acquiesce, the majority must, or the Government must cease. There is no other alternative, for continuing the Government is acquiescence on one side or the other. If a minority in such case will secede rather than acquiesce, they make a precedent which in turn will divide and ruin them, for a minority of their own will secede from them whenever a majority refuses to be controlled by such minority. For instance, why may not any portion of a new confederacy a year or two hence arbitrarily secede again, precisely as portions of the present Union now claim to secede from it? All who cherish disunion sentiments are now being educated to the exact temper of doing this.

Is there such perfect identity of interests among the States to compose a new union as to produce harmony only and prevent renewed secession?

Plainly the central idea of secession is the essence of anarchy. A majority held in restraint by constitutional checks and limitations, and always changing easily with deliberate changes of popular opinions and sentiments, is the only true sovereign of a free people. Whoever rejects it does of necessity fly to anarchy or to despotism. Unanimity is impossible. The rule of a minority, as a permanent arrangement, is wholly inadmissible; so that, rejecting the majority principle, anarchy or despotism in some form is all that is left […]

Why should there not be a patient confidence in the ultimate justice of the people? Is there any better or equal hope in the world? In our present differences, is either party without faith of being in the right? If the Almighty Ruler of Nations, with His eternal truth and justice, be on your side of the North, or on yours of the South, that truth and that justice will surely prevail by the judgment of this great tribunal of the American people.

By the frame of the Government under which we live this same people have wisely given their public servants but little power for mischief, and have with equal wisdom provided for the return of that little to their own hands at very short intervals. While the people retain their virtue and vigilance no Administration by any extreme of wickedness or folly can very seriously injure the Government in the short space of four years.

While voters and states might rightly despise any given government action, as long as the political process remains open to them, their only just recourse lies within that process. To do otherwise is, in effect, to proclaim that one may pick and choose which laws to follow and which to ignore, a reversion to minority rule by which the few can dictate virtually anything to the many.  Indeed, if a state can legally break away from the nation, then what’s to keep a city from breaking away from a state, or an individual from a city?

At the end of the day, good government is ultimately dependent upon enough of the people eventually coming to their senses to set things right. This remedy is always uncertain, and often slow and unsatisfying, so it’s understandable that people would seek out some extra insurance for when the will of the people lets them down. But while it’s not inconceivable that secession could function as that insurance in some cases, nor is it clear that secession would be any more viable than revolution, and the logic of secession could actually do much more harm than good, by undermining the respect for the rule of law which is essential to good government.

Ultimately, though, as McCain says:

The fundamental question is, “Who ratified the Constitution, and what sort of union was created by that ratification?” And the answers to those questions are not, nor can they be, a matter of mere opinion. There are historical facts to be considered, and which Rahe glosses over.

McCain glosses over some of those historical facts, too. Those facts will be the subject of Part 2.

New on NewsReal – How ObamaCare and Its Apologists Make a Mockery of the Constitution

Calvin Freiburger Barack Obama, Constitution, Founding Fathers, health care, http://schemas.google.com/blogger/2008/kind#post, judges, NewsReal
My latest NewsRealBlog post:
As a victory for constitutional originalism and a major blow to Barack Obama’s agenda, Judge Henry Hudson’s ruling against ObamaCare’s individual mandate has many conservatives cheering. But is it too soon to break out the champagne glasses? UC Boulder law professor Paul Campos thinks so. At the Daily Beast, he says that the Left may yet have the last laugh:

Judge Hudson’s decision, by ruling the individual mandate unconstitutional but leaving the rest of the Affordable Care Act intact, would, if it were to stand up on appeal, essentially be a death sentence for the private medical insurance industry in America.

After all, under the remaining provisions of the ACA, insurance companies would still be legally required to enroll applicants despite whatever pre-existing conditions the applicants might have—but they would no longer benefit from the crucial legislative quid pro quo that anyone who did not purchase insurance would be subject to a penalty in the form of a tax.

Perhaps (though it’s unclear how big the difference will be, since many will buy health insurance regardless of whether the law says they must). But that’s the thing about conservatives: we don’t assume that the courts will resolve all our political goals for us. Instead, we’re holding our lawmakers’ feet to the fire to see ObamaCare repealed legislatively. Likewise, if the individual mandate is unconstitutional, it’s unconstitutional. If an act of Congress can’t operate without a provision the Constitution doesn’t allow, that’s an argument against the act, not for the provision.

Of course it’s always possible that the Supreme Court would strike down the ACA as a whole. But given that even many of the biggest opponents of the law concede that its other provisions are constitutional, this seems extremely unlikely.

“Many” ObamaCare critics concede the constitutionality of the rest of the law? Name one.

Read the rest at NewsRealBlog.

John Guardiano Responds, Fails (Updated)

Calvin Freiburger Andy McCarthy, conservatism, Constitution, David Frum, David Swindle, dishonesty, http://schemas.google.com/blogger/2008/kind#post, Islam, Islamofascism, John Guardiano, NewsReal, religion

As much as I once applauded and cited some of John Guardiano’s work, I could never get over his devotion to the deplorable David Frum, whose dishonesty should repulse all men of goodwill, regardless of political leanings. But his increasingly-hyperbolic attacks on Islam’s critics – including falsely accusing Andy McCarthy of wanting to strip Muslims of First Amendment protection – have confirmed that he and Frum are two peas in a pod.

Guardiano has responded to my post on that point. Since the evidence he originally offered was bogus, he now claims the proof is in McCarthy’s latest book, where McCarthy discusses how Islam is not merely a religion, but also a comprehensive social and political program, and therefore not everything that falls under the banner of “Islam” is constitutionally protected.

The problem, of course, is that McCarthy’s right about both Islam and the general principle that not every “religious” act is covered by freedom of religion. Witch-burning is just one of many things that members of other religions could claim their faith demands; would Guardiano say that by making such an obvious statement, I’m advocating denying First Amendment protection to Puritans? Further, neither statement comes close to claiming that Muslims deserve no religious liberty, or that no aspect of Islam is constitutionally protected.

So, yes, John, you lied about Andy McCarthy, because – like the deranged blowhard you work for – you are psychologically disposed to assume the worst from people who say things the “wrong” way.

I just have three more things to say to John. First, how can you in good conscience write for such a dishonest, demagogic website as FrumForum? Second, as David Swindle has noted, you have yet to clearly demonstrate that your foes’ assessment of Islam is wrong.  Lastly, yes, I believe the Founders would respect Muslims’ true religious liberties, it’s worth noting which assessment of Islam our forefathers would find more accurate. Hint: it’s not yours.

Update: In response, whining about “nastiness.” If I were him, I’d be more concerned about having allied myself with the dishonest “Right” rather than the “vitriolic.”

Who Said Anything About Repealing the 14th Amendment?

Calvin Freiburger 14th Amendment, anchor babies, birthright citizenship, Constitution, http://schemas.google.com/blogger/2008/kind#post, Jill Stanek

Jill Stanek is a tremendous pro-life blogger, but she’s unfortunately framed the question of birthright citizenship for illegal immigrants all wrong. She asks her readers: “Do you think the 14th Amendment should be repealed?” But nobody’s talking about repealing the 14th Amendment. Some people have suggested a constitutional amendment repealing birthright citizenship, but all this would do would be to modify one aspect of the Amendment. To suggest anything like a full repeal is on the table is unfounded and absurd.

Second, those talking amendment are mistaken: the 14th Amendment as originally written and intended does not automatically give citizenship to the children of illegals born on American soil. Dr. John Eastman explains:

The text of the Fourteenth Amendment’s Citizenship Clause provides that “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”  That text has two requirements: 1) Birth on U.S. soil; and 2) Being subject to the jurisdiction of the United States when born.  In recent decades, the opinion has taken root, quite erroneously, that anyone born in the United States (except the children of ambassadors) is necessarily subject to its jurisdiction because everyone has to comply with our laws while physically present within our borders.  Those who drafted and ratified the Fourteenth Amendment had a different understanding of jurisdiction.  For them, a person could be subject to the jurisdiction of a sovereign nation in two very different ways: the one, partial and territorial; the other full and complete.  Think of it this way.  When a tourist from Great Britain visits the United States, he subjects himself to our “territorial jurisdiction.”  He has to follow our laws while he is here, including our traffic laws that require him to drive on the right rather than the wrong (I mean left!) side of the road.  He is no longer subject to those laws when he returns home, of course, and he was never subject to the broader jurisdiction that requires from him allegiance to the United States.  He can’t be drafted into our army, for example, or prosecuted for treason for taking up arms against us.

So which of the two understandings of jurisdiction did the drafters and ratifiers of the citizenship Clause have in mind?  Happily, we do not need to speculate about that, as the drafters of the Fourteenth Amendment were quite explicit when asked this very question.  Senator Lyman Trumbell, a key figure in the drafting and adoption of the Amendment, stated that “subject to the jurisdiction” of the United States meant subject to its “complete” jurisdiction, “[n]ot owing allegiance to anybody else.”  And Senator Jacob Howard, who introduced the language of the jurisdiction clause on the floor of the Senate, contended that it should be construed to mean “a full and complete jurisdiction,” “the same jurisdiction” requirement as applied under the 1866 Civil Rights Act, which afforded citizenship to “all persons born in the United States and not subject to any foreign power.”  Although the subsequent ratification debates are not very comprehensive, one thing is quite clear: Everyone understood that the Fourteenth Amendment was at least designed to constitutionalize the 1866 Civil Rights Act, with the birthright citizenship caveat that one not be “subject to any foreign power.”

We have to understand the 14th Amendment before we can defend it.
(Hat tip: Lisa Graas)

What Conservatism Tells Us About Gay Marriage: The Complete Argument

Calvin Freiburger conservatism, Constitution, constitutional amendments, culture, Founding Fathers, gay marriage, homosexuality, http://schemas.google.com/blogger/2008/kind#post, judicial activism, NewsReal, social issues, society

UPDATE, September 28, 2021: The original version of this post linked to a pair of articles I wrote for NewsRealBlog in 2010. NRB is sadly no longer live, so I am preserving them here. What appears below is unchanged (except for replacing dead links with live ones) from slight revisions I made in 2012.

PART 1: The Constitution and Gay Rights

Conservatives, seeking to conserve the classical liberal principles of the American Founding, understand that rights are freedoms that individuals (not groups or relationships) possess by nature—rights to life, liberty, and property—and may not be justly taken away. In other words, rights denote things that cannot be done to you, not things that you must be given.

As believers in limited government and the rule of law, conservatives of every stripe are also bound to respect the plain meaning and original intent of the Constitution, which in the 14th Amendment prevents states from making laws abridging the “privileges or immunities of citizens” and guaranteeing to all Americans the “equal protection of the laws.”

Defining marriage as a monogamous man-woman union violates none of this. Under the traditional status quo, gay Americans are in no way denied their rights to life, liberty, property, or any other legal right, but are treated as free and equal to straight Americans in every way required by both natural law and the Constitution. They aren’t denied the freedom to form relationships, to have sex, to live together, to share property, to make contracts, to visit one another in hospitals, or to make medical decisions for one another. Private employers aren’t prevented from offering same-sex benefits (yet are, and should be, able to decide for themselves whether they want to offer benefits to gay and straight couples alike). Gays aren’t even prevented from holding private marriage ceremonies (which, obviously, is the part of marriage most people find personal meaning and fulfillment in anyway, not the state-issued license).

Same-sex marriage advocates often dispute this, alleging that the law does treat gay couples like second-class citizens. The Family Research Council responds:

When this issue was raised during debate over the Defense of Marriage Act in 1996, the Family Research Council did an informal survey of nine hospitals in four states and the District of Columbia. None of the administrators surveyed could recall a single case in which a visitor was barred because of their homosexuality, and they were incredulous that this would even be considered an issue.

Except when a doctor limits visitation for medical reasons, final authority over who may visit an adult patient rests with that patient. This is and should be the case regardless of the sexual orientation or marital status of the patient or the visitor.

The only situation in which there would be a possibility that the blood relatives of a patient might attempt to exclude the patient’s homosexual partner is if the patient is unable to express his or her wishes due to unconsciousness or mental incapacity. Homosexual partners concerned about this (remote) possibility can effectively preclude it by granting to one another a health care proxy (the legal right to make medical decisions for the patient) and a power of attorney (the right to make all legal decisions for another person). Marriage is not necessary for this […]

As with the hospital visitation issue, the concern over inheritance rights is something that simply does not require marriage to resolve it. Nothing in current law prevents homosexual partners from being joint owners of property such as a home or a car, in which case the survivor would automatically become the owner if the partner dies.

An individual may leave the remainder of his estate to whomever he wishes–again, without regard to sexual orientation or marital status–simply by writing a will. As with the hospital visitation issue, blood relatives would only be able to overrule the surviving homosexual partner in the event that the deceased had failed to record his wishes in a common, inexpensive legal document. Changing the definition of a fundamental social institution like marriage is a rather extreme way of addressing this issue. Preparing a will is a much simpler solution.

Though gay unions fare much better that same-sex marriage supporters will admit, it is true that the precise legal options available to gay couples are not entirely analogous to those of married couples. But redefining marriage and creating same-sex civil unions are hardly necessary to rectify the situation. As Ramesh Ponnuru writes in National Review:

There is no very good reason that many of the incidents of marriage that remain on the books should be tied strictly to marriage. To the extent possible, they should be extended more widely. Liberals and conservatives, supporters and opponents of same-sex marriage alike, should be willing to support this extension.

Take, for example, the question of the bereavement leave given to state employees. State governments could easily have their workers designate a person whose death would trigger the leave. Many workers would choose their spouses. Gay men and lesbians in long-term relationships would, presumably, choose their partners. People who are not in romantic relationships might choose blood relatives or friends. Family leave for state employees could be handled similarly.

So could hospital-visitation rights: Where the law has said that hospitals must grant them to spouses, it could be amended to require that they also be granted to whomever the patient has designated-and again, that “whomever” could be a man’s live-in girlfriend, his boyfriend, or a close friend.

These benefits could, perhaps, be bundled together: People could be allowed to choose someone as their “designated partner” for a multitude of purposes. Legislators could call the resulting bundle of rights a “domestic partnership” or even a “civil union” if they wish. Bundling the benefits together would make things simpler for beneficiaries and government officials alike than extending each benefit separately.

Indeed, if those claiming to speak for gay Americans are really interested in addressing true inequality and streamlining laws that needlessly complicate gay couple’s lives, they would find that such bipartisan solutions would be easily achievable—even when negotiating with the most strident of social conservatives, from Dr. James Dobson to Ann Coulter (note well that neither of these figures’ stands for actual gay rights has prevented gay activists from defaming them as homophobes).

While preserving traditional marriage doesn’t threaten the rights of gay Americans, there are certain benefits tied to civil marriage that same-sex marriage advocates sometimes misrepresent as rights—there are a total of “1,138 federal statutory provisions classified to the United States Code in which marital status is a factor in determining or receiving benefits, rights, and privileges.” But many of these are either meant for families raising children on a single income, and thus irrelevant to gay couples, or superfluous government handouts that have nothing to do with civil marriage’s original purpose anyway (and that’s not even getting into the conservative objection to benefits of any kind at the federal level).

It would be interesting, and perhaps worthwhile, to fully review everything civil marriage currently offers, and reassess what should be retained, what should be restricted to single-income households or couples with children, and what should be ended entirely. But the fact that some couples may reap excessive or pointless benefits is hardly one of the country’s most pressing issues, and it’s certainly no reason to support a wholesale redefinition of the institution.

It is simply erroneous to identify civil marriage as a “right.” Rather, marriage is an arrangement offered to procreative relationships, which society wishes to promote and strengthen in order to foster stable, healthy environments for the upbringing of future citizens. Gay unions, obviously, are qualitatively different from straight ones in that they don’t produce offspring, so formalizing them serves no comparable public purpose. (And as Robert Stacy McCain notes in the American Spectator, “equality” is not the same as “sameness,” and confusion of the two is a Progressive notion. This, along with the procreative element, easily invalidates comparisons between same-sex and interracial marriage.)

Reasonable people may dispute the correctness of this basis for traditional marriage (a policy judgment proper for elections, not courts) but all should admit its rationality. George Mason law professor Nelson Lund finds that California’s Proposition 8 “easily meets” Judge Vaughn Walker’s “rational basis” test (a test with no basis in the Constitution’s text anyway), and recalls that the Supreme Court “decided in 1971 that an identical challenge to the traditional definition of marriage was meritless,” and the court has never “suggested that its 1971 decision was wrong.” An overview of rulings on marriage between 2000 and 2011 conducted by the Institute for Marriage and Public Policy found that, while “four state courts have ruled marriage laws unconstitutional,” “at least ten other state and federal courts” have upheld the lawfulness of traditional marriage definitions, as have “three major international cases.”

Interestingly, a brochure [PDF link] put out by the Pro-Life Alliance of Gays and Lesbians explains why there is no privacy-based case for a right to same-sex marriage, either:

Gay marriage (civil unions, domestic partnerships) is currently a hot public policy issue, but it is the very antithesis of a privacy right because it seeks state action for the approval and sanction of LGBT relationships. Because the marriage contract is a three-party contract (the state is the third party) there can be no meaningful talk of a “right to privacy.”

The Constitution is silent on marriage, and has no language that can be reasonably construed as requiring states to treat relationships and legal arrangements (not individuals) that are not the same, as if they were identical. The only hint of such a requirement would be the Full Faith and Credit Clause, which promises, “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.” However, according to Yale law professor Lea Brilmayer, the clause has never been interpreted as preventing states from maintaining their own definitions and qualifications for marriage, regardless of what other states say.

Some claim that the 9th Amendment, which establishes that rights aren’t nonexistent simply because the Constitution doesn’t mention them, contains the right to same-sex marriage. But this is suspiciously reminiscent of the constitutional “penumbras” from which the right to abortion allegedly emanates. Nobody seems to have discovered this right until now, and again, the Founders understood rights as freedoms government can’t take, not benefits it must offer. Unless we want to open the floodgates to judges mandating anything someone might want to rationalize as a heretofore-unemunerated constitutional right, 9th Amendment rights are best understood in this context.

The purpose of the judicial branch is not to make policy judgments or to enact any judge’s particular understanding of justice or morality; it is to judge the constitutionality of the other branches’ actions. To let small groups of unelected, unaccountable individuals make policy decisions for the rest of the country is an affront to the very concept of self-government. Thomas Jefferson adamantly feared an unrestrained judiciary’s potential to “place us under the despotism of an oligarchy.”

A proper understanding of natural law, the Constitution, and the judiciary’s role firmly establish that justice doesn’t require same-sex marriage, and that redefining marriage by judicial fiat is illegitimate. But conservatives have another powerful reason to condemn judicial activism on this issue: even good changes can be harmful if forced upon society suddenly and rapidly. The Founders crafted our dual-chambered Congress for the express purpose of slowing down actions motivated by public passion and forcing careful deliberation of public policy, and Edmund Burke teaches us that there’s a difference between change and reformation:

The former alters the substance of the objects themselves, and gets rid of all their essential good as well as of all the accidental evil annexed to them. Change is novelty; and whether it is to operate any one of the effects of reformation at all, or whether it may not contradict the very principle upon which reformation is desired, cannot be certainly known beforehand.

In Liberty and Tyranny: A Conservative Manifesto, Dr. Mark Levin interprets Burke as prescribing the following method of implementing change:

The proposed change should be informed by the experience, knowledge, and traditions of society, tailored for a specific purpose, and accomplished through a constitutional construct that ensures thoughtful deliberation by the community.

So far, we’ve hopefully established this much: regardless of your stance on same-sex marriage, you cannot advance that position through the judiciary and call yourself a conservative. Hijacking the courts to circumvent the democratic process is an unmistakably leftist impulse and an affront to the Constitution. (Republican attorney Ted Olson’s dismissal of “judicial activism” as code for any decision someone doesn’t like is a shameful, un-conservative lie that plays directly into the Left’s judicial propaganda efforts.)

For those convinced that such a drastic cultural transformation as redefining marriage is worthwhile, necessary, or inevitable, conservatism allows only one way to bring it about: persuading the people to enact it themselves, not forcing it upon them with the stroke of a judge’s pen.

PART 2: Marriage’s Role in a Free Society

Having dispatched the idea that the Constitution or natural law somehow require the redefinition of marriage to encompass gay unions, we now turn to the more contentious question of where preserving and redefining marriage fall on the political spectrum.

American conservatism is essentially fidelity to the principles of America’s Founding Fathers. We on the Right universally revere the Founders for their belief in individual liberty and limited government, but we sometimes forget that they overwhelmingly believed just as strongly in the necessity of certain moral values to a free society, and that they didn’t believe protecting natural rights and maintaining basic infrastructure were government’s only proper functions.

George Washington tells us that morality, one of the “firmest props of the duties of Men and Citizens,” is an “indispensable support” to political prosperity. John Adams writes that policy should “regulate” human passions, because it is “of the highest importance” that they be “arranged on the side of virtue,” and warns that the Constitution is “wholly inadequate to the governance of any other” than a “moral or religious people.” Charles Rowley of George Mason University writes that for James Madison, “a republican order must have a moral content, a cluster of values, without which it would lose its meaning.”

Even the Founders we consider relatively secular agree—Thomas Jefferson fears what might become of nations which fail to admit “a chapter of morality in their political code,” while Benjamin Franklin hopes that the nation’s “virtues public and private grow with us, and be durable,” because “only a virtuous people are capable of freedom.”

It’s also generally understood that strong respect for tradition is a key component of conservatism. Edmund Burke warns us that those “who never look backward to their ancestors” will “not look forward to posterity.” Granted, we shouldn’t unconditionally support the old just because it’s there; traditions proven to be irrational and destructive should be abandoned. Likewise, virtue is not a just excuse to violate Americans’ natural and constitutional rights. But that’s not what conservatism does; conservatism conserves certain values and institutions which have, over time, proven themselves integral to the civil society. William F. Buckley put it this way:

Conservatism aims to maintain in working order the loyalties of the community to perceived truths and also to those truths which in their judgment have earned universal recognition.

Here, the time-tested institution to be conserved is marriage, and the virtues it embodies are intimately tied to a republic’s survival. Mankind as a whole has recognized the union’s importance to society from Aristotle onward, and the Founders’ philosophical progenitors certainly understood—Montesquieu writes that marriage arises from the “natural obligation of the father to provide for his children,” important for the “propagation of the species.” John Locke concurs: the “female is capable of conceiving, and de facto is commonly with child again, and brings forth too a new birth, long before the former is out of a dependency for support on his parents help” and the “father, who is bound to take care for those he hath begot, is under an obligation to continue in conjugal society with the same woman longer than other creatures.”

Accordingly, Thomas West writes in Vindicating the Founders, the laws of the Founding generation were geared to “support stable family life.” Law clearly couldn’t “by itself produce the passions and convictions that make for enduring marriages,” but it could “weigh in on the side of” them by “supporting healthy desires and opinions.” Kay Hymowitz elaborates in an illuminating essay exploring the republican character of American marriage:

The Founders believed that American citizens should not only be allowed to run their own lives but should be capable of doing so and responsible for doing so. In order to be free from “authority in all its guises,” as Jefferson put it, citizens had to be competent, industrious, self-sufficient, and virtuous. All these qualities were to be learned in the republican home: “The foundations of national morality must be laid in private families,” John Adams wrote in his diary in 1778.

Here Adams was voicing an up-to-the-minute theory of the republican family. Political thinkers imagined the American family as a factory specifically designed to turn out self-governing citizens—something quite different from what other kinds of families did […]

Most important, republican marriage provided the edifice in which couples would care for and socialize their children to meet the demands of the new political order. If republican marriage celebrated self-government, it also had to pass down its principles to the young; it was supposed to perpetuate as well as to embody the habits of freedom. So whereas in all Western societies, the state concerns itself with fostering the institution of the family because it is the mechanism by which the society reproduces itself, in America that state concern takes on a special urgency, because of child rearing’s unique momentousness to the national project.

Marriage is essential to society because it helps instill in future citizens competence, industriousness, self-sufficiency, and virtue, so society emphasizes the parental aspect of marriage and reinforces responsibility toward one’s offspring. This is how marriage has been understood for most of our history; indeed, considering the difficulty of dissolving a marriage from the Founding era until the 1970s, it should be obvious that civil marriage was never about the feelings or gratification of spouses until the rise of modern leftism, an ideology largely defined by its elevation of self-indulgence into a virtue in and of itself.

The reorientation of marriage away from the needs of children and toward the desires of adults, thanks in large part to the casualization of divorce, has been one of the most disastrous developments of the past few generations. It’s creating well-adjusted, self-governing citizens less and less. Hymowitz and West’s aforementioned works discuss divorce at length, NRB’s David Forsmark has written about the problem here, and Guilty by Ann Coulter offers an excellent exploration of the topic (alongside the related phenomena of deliberately raising children out of wedlock). American marriage has fallen far enough as it is; changing it to include homosexual relationships would erase procreation from marriage’s definition entirely, emptying the institution of all the social value our forefathers saw.

Aside from hyper-emotional demagoguery, there are only a few real arguments against conserving marriage. The most common, that gay love deserves respect and acceptance, has nothing to do with why government recognizes anyone’s marriage, and the reason government does, procreation, obviously doesn’t apply to same-sex unions. It hardly needs to be said that conservatives, who understand that government isn’t a paternalistic body there to simply make people feel good about themselves, should know better than to fall for this point.

The second argument, that not all married couples have children, quickly falls apart upon closer scrutiny. Not every couple must procreate for marriage as a whole to be generally practical or worthwhile, and as Ed Whelan explains:

That purpose is advanced even when a husband and wife can’t procreate together (because one of them is infertile), as the marital obligation of fidelity helps ensure that the fertile spouse doesn’t have children outside the marriage. That purpose is also advanced when a husband and wife don’t intend to procreate, for the obvious reason that they may nonetheless end up having children together (and also may change their intent). And, of course, there are plenty of countervailing privacy reasons why the state wouldn’t be exploring “procreative capacity.”

The third argument is marriage’s current state of disarray. Arguing for ending civil marriage entirely, Hot Air’s Ed Morrissey casually dismisses what was clear to our forefathers:

Let’s first dispense with the idea that the government protects the sanctity of marriage. It doesn’t; if government ever did that, that ended with no-fault divorce. Marriage, as run by the government, is the only contract in this country that can be broken by one party alone with no adverse consequences. (Well, that and professional sports contracts, I guess.) Partnership agreements in the business context would disintegrate without at least the threat of government enforcement of its provisions. Marriage as run by government has been disintegrating for decades, as the divorce rate shows, and that has nothing to do with gay relationships.

Yes, the breakdown of the family started before the push to redefine marriage. But rather than supporting gay marriage, this observation actually reveals the deficiencies of the redefiners’ thinking. First, it’s simply illogical to say that one injury to an institution justifies another one. (Unless, of course, one wants to destroy the institution. Then it makes perfect sense.) If a boat is leaking, the last thing you want to do is add new and bigger holes. Surely, Morrissey isn’t suggesting that it’s impossible to oppose both same-sex marriage and no-fault divorce, is he? Indeed, if shifting marriage back toward parental responsibility is difficult now, how much harder will it be in generations where the link between “spouse” and “parent” has been severed entirely?

Second, and more importantly, it shows a disturbing willingness to follow rather than lead, to simply acquiesce to the whims and trends of the day rather than stand for what’s right. What happened to standing athwart history, yelling stop? The conservatism I grew up admiring wasn’t so meek; it taught that principles don’t change with the mere passage of time and knew that the difficulty of success shouldn’t deter us from a just cause.

Make no mistake: redefining marriage belongs on the Left. The belief that marriage has no fixed meaning is rooted in the progressive assumption that truth is relative and evolves alongside history. The institution’s decline was a byproduct of the sexual revolution, enabled and sustained by “enlightened” promises to free society from the judgmentalism of traditional morality. To the Left, homosexuals were another interest group to add to their coalition of identity-politics victims. And the version of marriage they’re fighting for is a watered-down grab bag of government benefits that have little to do with the institution’s original purpose. Indeed, it’s hard to read David Horowitz’s description of the leftist impulse and not see the connection:

That is in fact the essence of what it means to be a radical — to be willing to destroy the values, structures and institutions that sustain the society we live in. Marx himself famously cited Alinsky’s first rebel (using another of his names — Mephistopheles): “Everything that exists deserves to perish.”

Echoing Horowitz, Irving Kristol described modern liberalism as “an ethos that aims simultaneously at political and social collectivism on the one hand, and moral anarchy on the other. It cannot win, but it can make us all losers.” And moral anarchy is indeed what the breakdown of marriage has wrought.

Defending marriage is a clear conservative imperative. It’s not a coincidence that scores of conservative philosophers, politicians, pundits, activists, and voters stand with marriage. Taking to heart the judgment of most of the Right’s leading voices—including Ronald Reagan, Russell Kirk, William F. Buckley, Phyllis Schlafly, Bill Bennett, Ann Coulter, Dennis Prager, National Review, Human Events, and the Heritage Foundation—they realize that our Founders’ insights on liberty and virtue were meant to complement one another, not be embraced selectively in a vacuum. We don’t have to agree with every word they wrote, but we can’t simply ignore large sections of the Founders’ thinking and expect to keep a republic.

Further Reading:

Part 3: Conservative Solutions to Gay Marriage

“Why Gay Marriage Is a Bad Idea” by Marc Barnes

“A Secular Case Against Gay Marriage” by Wintery Knight

Family Structure Studies

21 Reasons Why Gender Matters

Ruth Institute

Dr. Mark Regnerus

Original August 19, 2010 post (some dead links): 

Because of the outrageous Prop. 8 decision and the muted reaction by Republican politicians and even certain conservative leaders, I thought it necessary to do my part here and on NewsReal to keep the Right on track and clarify that conservative first principles do not prescribe indifference to marriage.

Part 1 explores whether or not there is a natural or Constitutional “right” to legal recognition of same-sex marriage, and confronts the legitimacy of judicial activism.

Part 2 argues that a full understanding of the Founders’ thought and conservative principles clearly establishes the protection of marriage as a conservative imperative, and that redefining marriage is a radical project that belongs on the Left.

Part 3 explores several strategies conservatives should adopt to protect marriage, including a conservative defense of amending the Constitution.

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

Calvin Freiburger Buckley, conservatism, Constitution, constitutional amendments, Founding Fathers, gay marriage, homosexuality, http://schemas.google.com/blogger/2008/kind#post, judicial activism, law, marriage, strategy

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.

What Have Other Courts Said About State Marriage Protection? UPDATED

Calvin Freiburger Constitution, courts, gay marriage, http://schemas.google.com/blogger/2008/kind#post, judicial activism, marriage, social issues, states

For what it’s worth, many courts would have upheld Proposition 8:

New York Court of Appeals? Upheld in New York:  

The majority decision, written by Judge Robert S. Smith, who was appointed by Gov. George Pataki, found that limiting marriage to opposite-sex couples could be based on rational social goals, primarily the protection and welfare of children. “Plaintiffs have not persuaded us that this long-accepted restriction is a wholly irrational one, based solely on ignorance and prejudice against homosexuals,” Judge Smith wrote in his 22-page opinion. For example, he wrote, it could be argued that children benefit from being raised by two natural parents, a mother and a father, rather than by gay or lesbian couples.

US 8th Circuit Appeals Court? Upheld in Nebraska:  

Loken noted “historical fact – the institution of marriage has always been in our federal system, the predominant concern of state government. … This necessarily includes the power to classify those persons who may validly marry.” Citing the recent decision of the New York Court of Appeals, the circuit court found two justifications for Nebraska’s marriage law. First, it noted that the state had a legitimate interest in inducing opposite-sex couples, who could unintentionally bear children, into stable relationships. Second, the state could base its law on the traditional notion that children do best when raised by two parents of the opposite sex. The court found that both these interests were rationally related to Nebraska’s constitutional amendment. The court also rejected the plaintiffs’ claim that this case was controlled by the U.S. Supreme Court decision in Romer v. Evans. Romer involved a state constitutional amendment that invalidated certain local ordinances prohibiting discrimination on the basis of sexual orientation. The Romer Court held that the amendment was not rationally related to a legitimate state interest, but was clearly the result of “animus.” 

Maryland Court of Appeals? Upheld in Maryland:

In an opinion signed by four judges, Judge Glenn T. Harrell Jr., citing a Supreme Court holding on judicial restraint, wrote that, absent evidence of discrimination, “judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted. In declaring that the State’s legitimate interests in fostering procreation and encouraging the traditional family structures in which children are born are related reasonably to the means employed by [the law banning same-sex marriage], our opinion should by no means be read to imply that the General Assembly may not grant and recognize for homosexual persons civil unions or the reasons,” wrote Harrell, who is retired from the court but participated in the decision because he was a member when the case was argued.

California Supreme Court? Upheld before Walker:

California’s historic 2008 ruling, written by Chief Justice Ronald George, repeatedly invoked the words “respect and dignity” and framed the marriage question as one that deeply affected not just couples but also their children. California has more than 100,000 households headed by gay couples, about a quarter with children, according to 2000 census data.

(For what it’s worth, the LA Times notes that “Gay rights lawyers had no solid legal precedent on their side, and some of the court’s earlier holdings on constitutional revisions mildly undercut their arguments.”)

Washington Supreme Court? Upheld in Washington:

Johnson wrote that the Legislature had “a compelling governmental interest in preserving the institution of marriage, as well as the healthy families and children it promotes. This conclusion may not be changed by mere passage of time or currents of public favor and surely not changed by courts.”

UPDATE: The Institute for Marriage and Public Policy has a new report on this very subject [PDF link].

It Begins: Republicans Running Away from Marriage

Calvin Freiburger conservatism, Constitution, gay marriage, GOP, homosexuality, http://schemas.google.com/blogger/2008/kind#post, judicial activism, Proposition 8, Republican Party, RINOs, strategy

Speaking of Republicans being their own worst enemies…

Needless to say, I couldn’t agree less with Doug Mataconis and the Republican leaders to which he refers:

Certainly, there are areas of the country where taking a strong stand on gay marriage won’t hurt, and very likely could help, a Republican candidate. For the most part, though, it’s fairly clear that this year’s electorate is focusing on the economy and jobs, not whether or not the two guys in Apartment 3B can get a marriage license or not. If the GOP is smart, which is I admit an unanswered question, they’ll keep quiet on this and let the case make it’s way through the Courts.

Problem Number One: I don’t think this is a losing issue. Though the poll numbers are narrowing, many still show majorities opposed to redefining marriage. And as I said yesterday, 4/5 of the states have marriage protection legislation either on the books or in their constitutions. And this is all with national Republicans virtually silent on the issue. (And it’s not for nothing that Barack Obama won’t endorse same-sex marriage…) Especially considering the fact that the political winds are turning against the idea of the elite few telling states what to do, it’s high time our leaders tried their hand at, well, leading public opinion instead of following it for a change.

Problem Number Two: The post is all about strategy; no mention is made of principle. If Proposition 8 is an judicial affront to the rule of law, and if redefining marriage is fundamentally wrong, isn’t it worth some degree of political risk to say so? Doesn’t our political parties owe anything to the public good?

Defending Marriage: What Comes Next?

Calvin Freiburger conservatism, Constitution, constitutional amenments, gay marriage, GOP, homosexuality, http://schemas.google.com/blogger/2008/kind#post, judicial activism, marriage, moderates, Republican Party, RINOs, social issues

With another judge attacking marriage in California, the next question is where we go from here. Higher courts will review the decision, of course, but whatever they decide, you can be sure the legal challenges to state marriage definitions will keep coming. It’s difficult to see how true marriage and the will of the people can be secure without a constitutional amendment of some sort, whether it’s an outright national definition of marriage or a man-woman union or simply language revoking the judiciary’s right to address the matter.

How plausible is either scenario? More so than you might think. According to the National Conference of State Legislatures, 41 states currently preserve marriage legislatively, and 30 have put it directly in their constitutions. So public support is already a good chunk of the way to the 38-state threshold that would be necessary to ratify an amendment to the Constitution, and an increased perception that the courts won’t let the people make their own decisions (which may be fueled not only by this, but also by the feds suing Arizona and potential copycats, as well as legal battles over individual healthcare mandates) could be enough to push them the rest of the way.

Ironically, the biggest wild card I see is the likelihood of the Republican establishment running away from the issue out of perceived political expediency. We can always count on the GOP to pull defeat from the jaws of victory…