Wrong on the Left, Wrong on the Right

Am I the Only One Who Gets This?

by Patrick J Shanahan
12/01/03

It's always nice to be right, but sometimes it can get frustrating. It is especially frustrating when nobody else seems to grasp basic concepts that are central to an ongoing debate. I am used to those on the left not getting things - that is their job, and they do it well.But when it comes to the debate over "gay marriage" the right seems every bit as obtuse as does the left.

After the perfidy perpetrated by the Supreme Judicial Court of Massachusetts, the right is scrambling to move along the Federal Marriage Amendment by way of a solution. This is so breathtakingly wrong-headed and dangerous that it is scary. And yet virtually all the organs of the right are foursquare behind the idea. What the heck is going on?

The place to start dissecting this issue is to separate WHAT we want to accomplish, from HOW we wish to accomplish it. I fear that the right is having a great deal of trouble doing this. The overriding desire to protect the traditional concept of marriage is so strong as to make the "HOW" question seem of marginal importance. This is a major problem for me. The "HOW" should never be subordinated to the "WHAT," regardless of how important the "WHAT" seems at the time.

Let's start by asking a seemingly simple question: why do we have a Constitution?The easy answer, which ought to be obvious to anyone who reads it, is that the Constitution defines the nature of government, the rules by which it operates, and the limits to its power.That's it.Look at the Constitution as originally written. Not one word of it relates to morality, social conventions, or any other aspect of daily social life.It's sole purpose is to define the HOWs of government.

We have been remarkably consistent in keeping it this way over the years. This is clearly the secret to our Constitution's stability and longevity. It defines the rules of the game, not the outcome. The first significantstraying from the Constitutional straight and narrowwas Prohibition which, as we all know, was an unmitigated disaster.The do-gooder forces behind Prohibition sought to leverage the power of the Constitution to effect a social policy that had nothing to do with the structure, functions or limits of government.And the results showed what happens when the Constitution is misused.Whether Prohibition was a good policy idea is irrelevant.What is relevant is that using the Constitution to impose social policy is, ipso facto, a disaster waiting to happen. In the case of Prohibition, the result was bathtub gin, speakeasies, and a stunning rise in organized crime.

The next significant attempt to use the Constitution to impose social ideas was the Equal Rights Amendment (ERA).This hunk of 60s feminist schlock was akin toProhibition in that it did not seek to define or redefine the rules of how government worked, but instead sought to redefine the rules of how society ought to work. Thank God and the good sense of the American people that itwithered on the vine before it could pass.It would have surely been a disaster of major proportions.

Since the ERA died,most of the efforts at tampering with theproper role of the Constitution have come from the right, generally in reaction to the hijacking of the Constitution by liberal courts. We have heard noiseabout a Human Life Amendment, a Flag Burning Amendment, and now a Marriage Amendment. In each case, the conservative efforts to amend the Constitution were preceded by a series of court decisions in which liberal, activist courts ignored the actual Constitutions as written, instead relying on their good liberal consciences to invent new "rights"to advance their favored policy goals. The decision handed down by the MassachusettsCourt was a constitutional monstrosity. It was sheer fantasy, almost breathtaking in its audacity and its contempt for democracy.

But the answer is not to abuse the Constitution by using it as a"trump card" to rein in wayward courts.Not only is thisa very bad idea from a constitutional perspective, it is a no-win approach.At best it will result in a series of defensive maneuvers, as conservatives seek to channelthe slow and cumbersome constitutional amendment approach to block the aggressive and much quicker judicial activism of liberals.Even in the very best possible scenario, we will end up with a few desirable social policy outcomes, but at the cost of a less stable, less secure, less meaningful and diluted Constitution that leave us as a nation open to far more serious issues down the road.

Some will latch onto a given issue (abortion, gay marriage,etc.) as soooo important on its own terms that it warrants the drastic step of constitutional amendment.I cannot agree. My passion for traditional norms is considerable, but we make a deal with the Devil if we seek tochange the Constitution to achieve our social policy goals.

On the other hand, the Constitution leaves considerable leeway in the area of separation of powers.The Foundersforesaw an ongoing and somewhat rambunctious tussle between the various branches. One interesting thing about the judiciary is that it has very little defined area of responsibility, and essentially no power on its own terms. The power that it has accrued has been as a result of concessions by the other branches. It is time for the elected representatives of thepeople to stand up to the courts and say no. They can do it. They just need to muster up the courage.

The ultimate source of the problems we face is an imbalance in the separation of powers. Andthe solution to the problem must lie in correcting that imbalance. That is where conservatives need to focus their energy, not in some misguided quixotic pursuit of a constitutional blocking strategy.