Bench Memos

What Should Be Constitutionalized?

The team of David B. Rivkin, Jr. and Lee A. Casey, well-known to readers of NR and other conservative publications, had an uncharacteristically unpersuasive op-ed in Friday’s New York Times on the subject of the various marriage amendments added to state constitutions in the last few election cycles.  If they had their way, amendments defining and restricting marriage to opposite-sex couples as a constitutional matter would not even have been proposed, let alone passed.  Instead the leaders of these state-level efforts should have contented themselves with amendments simply removing the issue from the hands of judges, but leaving it to state legislatures to redefine marriage in future.

It is true that the sense of outrage that produced the recent spate of amendments is directed at the fact that judges have transparently legislated gay marriage into existence in the guise of deciding cases under their state constitutions.  But it is only partly directed at that “who decides” feature of what some judges have presumed to do.  It is also directed at what they’ve been doing—redefining what is arguably the core institution of our civilization in such a way as to damage it deeply, perhaps fatally.  To deal with both the “who” and the “what” that confront us in recent judicial moves against the tradition of marriage, it is neither surprising nor inappropriate that drafters of amendments—and the voters who have approved those amendments—have seen fit to deal at one stroke with both questions.

Rivkin and Casey are right that “the question of who may marry and under what conditions has [always] been the province of the state legislatures.”  But until very recently, no one imagined that “who may marry” would come to include same-sex couples, or that any public authority, judicial or legislative, would contemplate the resurrection of polygamy or the institution of polyamory.  Constitutions were silent on questions of marriage as long as everything outside opposite-sex monogamy was unthinkable.  Now the unthinkable has been thought, and people who are interested in preserving both tradition and democracy have legitimately concluded that constitutional silence on the substantive questions of marriage is no longer good enough.  “As our case is new, so we must think anew, and act anew,” said Lincoln.  Would a constitution written in 2006 be thought to need a prohibition of slavery?

Rather sniffily, Rivkin and Casey refer to marriage-defining amendments as “cluttering state constitutions with the disposition of many difficult social issues”—as though the fifty state constitutions were, up to now, models of lean, concise charters of government without any “social issues” decisions embedded in them.  This is something that anyone who has spent time perusing state constitutions would find it hard to credit.  They’re a pretty cluttered bunch, those constitutions.  And it is quite a depreciation of marriage’s importance to say that whether it shall be stretched to include pairings and groupings beyond opposite-sex couples is a mere “social issue” to be ranked with “adoption and child-welfare laws” or miscellaneous “criminal and other regulatory measures.”

Rivkin and Casey are pretty clear.  They care a lot about judicial usurpation of legislative power, as do I and a lot of other supporters of marriage-defining amendments.  What they don’t appear to care much about is the future of marriage.  Here is their vision of the future: “allowing the issue to be decided by state legislatures would be in the best tradition of American federalism: the states act as laboratories of political change,” and could “enact different definitions of marriage, some allowing same-sex unions, others banning them.”  Of course, that’s pretty much what we have now, with some states defining marriage in their constitutions, and others not doing so, leaving the channels of change more open.  What Rivkin and Casey want is for the channels of change to be more open everywhere, contemplating, with perfect equanimity, a future in which marriage is redefined to its destruction.  And if they worry so much about the power of legislatures being reduced by constitutional amendments, they might pause to notice how many of the recent amendments were proposed by legislators themselves, who see the virtue of preserving marriage against the foolishness of the future, wherever it might be located institutionally.

Rivkin and Casey also claim that the recent marriage-defining amendments are “likely to empower the judiciary more,” by introducing constitutional language that will require a lot of hashing out of its legal meaning in litigation.  The prospect of such litigation holds much interest, and perhaps some dangers.  But since Rivkin and Casey don’t offer a concrete model for the amendment language they would prefer—taking the issue out of judicial hands but leaving it to legislatures—it really can’t be confidently said that their alternative solution would promise less litigation and less empowerment of the judiciary.  New constitutional language always has a contested meaning, whatever it says.  (Heck, old constitutional language has contested meanings.)  I don’t think they can promise that the issue of same-sex unions can be made to “go away” in state courts thanks to some magic language they haven’t bothered to offer.

Yes, it’s true, “[t]o enshrine the definition of marriage in a state’s constitution removes the issue from the give-and-take of the normal political process.”  That’s the whole point.  If I wanted this blog post to go on still longer, I would begin to list the provisions in the U.S. Constitution that unnecessarily remove issues from the political process, on much less persuasive grounds than the importance of marriage.  And I would begin to discuss Rivkin and Casey’s bizarre closing comparison of marriage-defining amendments to Roe v. Wade, as though they were comparable causes of festering bitterness in our society.