Chris Wallace’s “flake” question to Michele Bachmann on Fox News Sunday was awful, but it was not all that surprising. Back in March, Mr. Wallace went terrier on Newt Gingrich over long ago marital infidelities … before proceeding to go mushy (as I recounted at the time) in an interview of John McCain and Joe Lieberman, who were gushing over the “Arab Spring” (as Fox News programs are wont to do).
Mr. Wallace is generally very good, but one gets the sense that, as a studiously even-handed guy, he is bothered by the Left’s smear of Fox as a right-wing lapdog. Every now and then, with a conservative guest, he goes overboard to prove it’s not true. Those guests are apt to be asked obnoxious questions that would never be put to Lefties, to whom Fox interviewers are unfailingly polite. But look, Wallace was big enough to say he was sorry, and to do so with a refreshing “I messed up” — it’s nice to hear a stand-up guy who doesn’t do the weaselly “I’m sorry if you misunderstood me” routine. If, as Katrina reports, Michele hasn’t accepted the apology, she ought to. Americans aren’t just looking to replace President Obama’s policies; his frequent lack of grace also grates. So be gracious — it’s not just good politics, it’s the right way to be.
While the “flake” question to the candidate got most of the attention, I was more taken aback by the anchor’s flakey ideas about federalism and the Constitution. Wallace spent a big chunk of the interview trying to create a contradiction where there is none between (a) Bachmann’s respect for states’ rights on the issue of gay marriage and (b) her support for a constitutional amendment to clarify that marriage in the United States is limited to the marital bond between one man and one woman.
Bachmann said that while she personally opposes gay marriage, it is not the place of the president or the federal government to dictate to the states; therefore, she respects the right of New York to adopt gay marriage as it has done by legislation (now signed by the governor). In taking this position, she properly relies on the U.S. Constitution’s Tenth Amendment, which reserves to the states or the people those powers that the Constitution neither grants to the federal government nor denies to the states. Marriage is a state law issue.
Simultaneously, Bachmann supports the afore-described marriage amendment to the Constitution. Wallace insisted that these two positions were in conflict. He seemed incredulous that Bachmann could maintain that the federal government must respect state sovereignty yet seek to impose what Wallace intimated would be a federal government standard.
What Mr. Wallace does not seem to get is that the Constitution and the federal government are not the same thing. The Constitution is an independent and higher authority. It, in fact, created the federal government, and it dictates what the federal government may and may not do. When the Constitution says, for example, “Congress shall make no law respecting an establishment of religion, …” that is not an intrusion by the federal government; it is a directive to the federal government from the Constitution. Similarly, when the Constitution directs states to, for example, give full faith and credit to the public acts of other states, that is not a directive by the federal government but by the Constitution — i.e., by the American people.
The Constitution, not the federal government, is the supreme law of the land. It has that exalted status because it was adopted as such by the states. It is the compact that sets forth the conditions — in particular, the division of powers and the guarantees of freedom — under which the states and the people agree to exist as one nation. In adopting its terms, the states and the people agreed to be bound by those terms — which is why, for example, Article VI makes the Constitution’s terms binding on “the Judges of every State,” regardless of any contrary state law.
Article V prescribes the procedures for amendment of the Constitution’s provisions. The hurdles are steep, ensuring that, before our fundamental compact can be changed, a broad consensus of the states (and thus the American people) must assent. No amendment is adopted unless it has first been proposed by a super-majority (two-thirds) in both Houses of Congress (or two-thirds of the state legislatures), and then is approved by an even higher super-majority (three-fourths) of the states. When an amendment that binds the states is adopted, this is not, as Wallace suggests, a matter of the federal government telling the states what to do. It is a matter of the American people overwhelmingly telling the states and the federal government what the basic compact of nationhood now holds.
Bachmann correctly argued that the Tenth Amendment calls for respecting New York’s right to permit gay marriage. She also correctly maintained that a constitutional amendment effectively nullifying gay marriage would be very difficult to achieve and would not be federal government usurpation of states’ rights. If traditional marriage is to be made the supreme law of the land, which she emphasized was a very big if, a constitutional amendment would be the only valid manner in which the American people — not the federal government — could make that determination.
On that last point, Bachmann contended that it was essential for a president to appoint judges who respected the limited role of the federal government and federal courts. Wallace responded as if she were trying to change the subject, but Bachmann rightly countered that this was precisely the subject: If you do not deal with gay marriage through the Constitution’s amendment process, the issue is certain to be usurped by activist federal courts (see, e.g., Ed Whelan’s excellent Bench Memos posts on the California Prop 8 case). Were that to happen, both the people of New York State and the American people would be undermined in their efforts to decide for themselves whether and where gay marriage ought to be permitted.
The congresswoman’s point was that, regardless of what she may think of gay marriage — or what any president, member of Congress, or federal judge may think of gay marriage — the people of a state have a right to govern themselves as they choose unless the Constitution forbids the choice they wish to make. On the matter of gay marriage, the Constitution contains no such prohibition. If there is to be such a ban, the Constitution would have to be amended. A constitutional amendment is not Washington dictating to a state; it is the American people dictating to a state. Such amendments are exceedingly rare, as they should be, because there are very few matters on which Americans cannot tolerate divergent views about, and approaches to, life. What none of us should want is unelected federal judges dictating a single standard — one way or the other — under which we all must live.
On all of this, Michele Bachmann was admirably consistent. It was Chris Wallace who seemed confused.