Solving the Wrong Problem

We need the right kind of Amendment

We have been trying to do a very dangerous and counterproductive thing. In a misguided effort to head off judicial social tyranny, conservatives are pushing for an Amendment to the U.S. Constitution defining marriage as solely between 1 man and 1 woman.

I completely agree with the policy desire here. Someday people will look back at the same-sex marriage debate and see one of the most ridiculous episodes in social history. The notion that we can just redefine what marriage “means” is palpably absurd. Marriage is what marriage is, and no amount of political activism will ever change that. To be just a bit crude, it’s like putting lipstick on a pig and calling it a pretty woman.

But the problem is that, in our angst to stop the social radicals, we seem to be perfectly willing to pervert the Constitution. The only difference between conservatives and liberals here is that we are using the proper amendment procedures in order to pervert it, while liberals prefer the judicial arrogance approach. This is a very important difference, but it does not absolve us of the crime of perverting the Constitution.

I do not know that I have seen one national level true-blue conservative argue that this is a rotten idea, and that scares me. Are we nothing more than liberals with a slightly different set of beliefs? Have we forgotten what, first and foremost, an American conservative ought to conserve? The Constitution is the center piece of our republican democracy. Supported by social custom and political habits, it is what holds government back and provides that critical sense of stability and continuity.

Liberals have long ago tossed aside any concern as to what the proper boundaries of the Constitution are. Conservatives need to pause long enough to remember.

Our Constitution is not - as I saw in writing recently - the written definition of our “social contract”. It’s nothing of the sort. It is not a roadmap to the “good society”. It is not a reflection of our hopes and dreams. It is not a moral blueprint. It is nothing so glorious as these.

It is, rather, a mundane mechanical blueprint. It defines the guts of the machinery of government. It defines how government operates and what its limits are. Read the thing sometime. The vast majority of the document details who does what in government. The rest details what the government cannot do to the citizens. Most of the things that matter in our lives are completely outside the scope of the Constitution. And that is exactly, precisely how it ought to be.

In the early part of the 20th Century a bunch of seriously misguided moralists used the Constitution as a tool to impose their policy preferences regarding alcohol consumption on the entire nation. This blatant perversion of the Constitution provides a healthy cautionary tale for those who would seek to repeat the mistake. This “victory” for the Temperance Movement resulted in a huge underground market in booze, with a corresponding rise in organized crime and, ironically, a corresponding increase in drinking. When people got bored with it, they had to pass another Amendment to change it. It is obvious that we ought not to directly correlate Prohibition with a Marriage Amendment. But the one thing we can be certain of is that things will happen as a result that we will not like.

Because we are trying to solve the wrong problem.

The problem is not that some gay people want to get married. The problem is that the judicial branch is completely out of control, and is using the power of the judiciary to impose its policy preferences by fiat, overriding the people’s legitimate social and political prerogatives. The judicial branch is perverting the Constitution one decision at a time. That is a real problem, and a serious problem. The idea that we can or should attempt to correct it by Constitutionalizing one policy issue at a time is nuts.

This real problem does beg for Constitutional relief. It is exactly the sort of stuff the Constitution is designed to deal with. We have a separation of powers issue. The Judiciary defined to itself the power to override the will of the people through judicial review. For most of our history this didn’t really matter all that much. But in the last 50 years this has become a tool of the left to achieve its policy aims by bypassing democracy. It happens over and over again, and the only way to stop it will be to rein in the judiciary’s role through Constitutional Amendment.

Exactly what would this Amendment look like? I will leave it to those more talented than I to figure out the words, but it would explicitly define the purpose, scope and limits of judicial review. It would define issues of social custom as being completely outside the scope of the Constitution and of judicial review. It would make it clear that the issues of same sex marriage, like abortion, like Affirmative Action, like college athletics, have nothing to do with the Constitution of the United States. It will make clear that most social and even most legislative actions are simply not issues that concern the Constitution at all.

One of the reasons we are in this mess is that the Legislative Branch has gladly handed over thorny social issues to the Courts. It makes it easier to be “for” everything if one can count on the courts to do the heavy lifting. Thus I am not confident that we could find enough people with the political courage to make such an Amendment happen. But this is the right approach to take. We cannot, we must not, pervert the Constitution piecemeal. We must not permit ourselves to end up in a situation in which the party in power routinely cobbles its preferences into the Constitution.

We need to conserve the Constitution. That doesn’t mean we can’t modify it. It does mean we must be clear about what we wish to change and why.

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