When Flag Burning Gay Abortionists Get Married
Or, How to Handle Social Crises
When You Don’t Have the Guts to Stand Up to Judges
by Patrick J. Shanahan
07/16/04
Unlike some cantankerous conservatives, I derive no pleasure from being a contrarian. While I don’t pay a whole lot of attention to herd instincts, neither do I find any inherent flaw in folks taking things seriously "just" because other folks do. Ultimately, I am a contrarian only when my close examination of an issue shows that it must be opposed.
I have very closely examined the issues most likely to get conservatives’ Constitutional dander up in a hurry - flag burning, abortion and now homosexual "marriage" - and have concluded that conservatives who seek to amend the Constitution to remedy these things are seriously wrong in their assessment.
I am strongly in synch with conservatives from a policy perspective. My goals are their goals. I seek respect for the flag, protection for the unborn, and defense of marriage. But to seek to modify the Constitution to achieve these desired goals borders on Constitutional malpractice. It sets horrible precedent, it is unnecessary and, frankly, it is the coward’s way out.
There used to be a day when one could distinguish conservatives and liberals on the basis of their willingness to engage in Constitutional activism. No more. There is no substantive Constitutional difference between Prohibition, the ERA and a marriage amendment. None. They are markedly different in terms of desired results, but in terms of how they relate to the actual purpose of the Constitution they are equally damaging. The Constitution was not designed to produce results; it was designed to define process. It was designed to define the limits and operation of government. Not one speck of the original Constitution or the first ten Amendments defines the “whats” of policy. It defined the “hows” of government operations. The minute we use the Constitution to begin defining “whats,” we have seriously corrupted it. That, to me, will be one of the signals that our nation has passed its apex. Weak and silly nations tinker with their constitutions. Our strength lies in our simplicity.
But now conservatives seem to have lost their passion for Constitutionalism. In reaction to the judicial legislation of liberal judges, we seem to have lost our nerve and bailed on maintaining a meaningful Constitution. It is almost as if we never really took it seriously to begin with.
Some will say that we have no choice, that liberal judges have forced us into this mode because of their activism from the bench. That is a false choice. We are not in a situation where the only two options are to capitulate or to change the Constitution. Although the Supreme Court has been ceded the primary duty of interpreting the Constitution, that does not relieve Governors, Presidents and Legislators from their obligation to ensure constitutional integrity. Governor Menino in Massachusetts could have stood up to the Court, pointed out that it was his obligation to assure the integrity of the Massachusetts Constitution, pointed out that the Supreme Judicial Court’s decision was clearly and directly contrary to the Constitution, and refused to follow it.
“Oh No!” some would cry, “That would create a Constitutional Crisis.” No it wouldn’t. Not unless you believe that any conflict is by definition a crisis. The Founders anticipated a tussle among the branches of government. That’s why they spent so much time created checks and balances. Today we have a balance of powers that we have allowed to get completely out of balance. That represents a constitutional crisis. The judiciary is not one among equals. It has become supreme, untouchable, autocratic. There is a major difference between letting the courts be a reasonable check on the passions of democracy, and letting them take the place of the legislators. We sit by like spectators as we watch the courts take over the proper functions of representative democracy. And we can think of nothing to do about it except to wreck our Constitution in order to change the rules as to what they can and cannot decide.
But here’s the secret: The courts are already acting outside of their constitutionally mandated roles, so what makes us think they will stop just because we change a rule here and a rule there?
There is one and only one solution to an arrogant and activist court system. That is for the representatives of the people to use the powers granted them by the Constitution to rein the courts in. That is not a radical solution. It is a conservative solution. It was the one baked into the Constitution by the founders. And it is the only way we as a nation and a people will be able to regain control over social policy.
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