Is Abortion Already Illegal?

Because abortion is ultimately a question of basic human liberty and not just good or bad policy, I have never agreed with those conservatives who think “leaving it to the states” is a sufficient solution to the issue (though it would be far preferable to the anti-democratic status quo forced upon us by Roe v. Wade). I instead support a Human Life Amendment to the U.S. Constitution, to protect the right to life nationwide. States should be able to do many things, but treating certain classes of human beings as property is not among them.
However, until the HLA becomes reality, I have also been wary of banning abortion via an act of Congress, for fear of violating the boundaries of Congress’s enumerated powers under Article I, Section 8 of the Constitution. The 14th Amendment, which was enacted to guarantee political rights to newly freed black Americans after the Civil War, seemed to come close to authorizing Congress to ban abortion, but the language about “all persons born” was always a hang-up for me.
But is that really a barrier? After closer contemplation of the 14th Amendment’s language, I’ve concluded the answer is no. Here are the relevant passages in their entirety:
Section 1: 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. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section 5: The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
There’s no question that this empowers Congress to prevent states from treating their inhabitants unequally or depriving them of life, liberty or property. But do the unborn count among those inhabitants? Let’s go line by line:
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.
So whatever else you are, you’re not a US citizen until you’re born.
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; […]
When taken with the first sentence, this pretty clearly indicates that the unborn aren’t entitled to the full slate of “privileges or immunities” a citizen enjoys. So no guns or voting for fetuses. Sorry.
However, the sentence continues:
[…] nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
“Nor” sets up another set of requirements, separate and distinct from the preceding clauses. Here, the amendment discusses protections applicable to “any person,” not “any citizen.” So while some legal protections and entitlements only come with American citizenship, others apply to every human being within our borders, regardless of their legal status.
This makes perfect sense. Legal rights are merely the terms of an agreement made by a particular group of people in their constitution, whereas natural rights are, according to the Declaration of Independence, God-given qualities possessed by every human being, which cannot be justly denied or violated by anyone.
There are obvious reasons why countries don’t want to have to give foreign nationals exactly the same legal protections and benefits as their citizens—for instance, we shouldn’t have to go through a full-blown jury trial every time we want to deport a violent illegal immigrant. But at the same time, we would never want to set the standard that people can do whatever they want to someone just because he’s not an American.
This certainly seems to fit with the original intent behind the measure—as President Ronald Reagan wrote in his famous essay, “Abortion and the Conscience of the Nation”: 
When Congressman John A. Bingham of Ohio drafted the Fourteenth Amendment to guarantee the rights of life, liberty, and property to all human beings, he explained that all are “entitled to the protection of American law, because its divine spirit of equality declares that all men are created equal.” He said the right guaranteed by the amendment would therefore apply to “any human being.”
If the unborn are people—and from both scientific and philosophical perspectives, they clearly are—then the Constitution already requires that their right to life be protected, even without a new amendment explicitly saying so. Any state that prohibits the murder of fully-grown humans while allowing the murder of those in the womb is unconstitutionally discriminating against the latter.
All right-of-center observers agree that the Constitution doesn’t require the right to abortion, but the understanding I’ve just proposed—that the Constitution actually forbids it—is much rarer. Even Justice Antonin Scalia believes the Constitution is silent on the question. Further, conservatives tend to dislike enacting their policy goals through unelected courts on principle. For these reasons, pro-lifers should continue to support the Human Life Amendment anyway, so that when abortion’s long-overdue end finally does come, nobody can plausibly question its democratic legitimacy. But if we manage to save lives by convincing even a few courts that the right to life is an equal-protection issue, so much the better.

What Conservatism Tells Us About Gay Marriage: The Complete Argument

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)

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.