I’m still ambivalent about the FMA, but I’m confused by one of the main arguments of its opponents. I keep hearing that it’s terrible to “change” or “tinker” with the Constitution. I’m sympathetic, but the gist of these arguments makes it sound like the Constitution currently has a fixed meaning. I wish! In fact, the folks fretting over changing the Constitution are largely — though not entirely — the same people who celebrate the pernicious doctrine of a “living Constitution.” There are conservative opponents of the FMA who are consistent in their opposition to both an amendment judicial activism.
Which brings me to my confusion.
What I don’t understand is why it’s a great thing for unaccountable judges to change the meaning of the Constitution without a public debate while it is some form of tyranny for the House, Senate and fifty states to debate the issue over the course of months or years under the glaring spotlight of the media.
Before you answer that an amendment is more permanent, let me pre-emptively say: Not so fast. Amendments can be, and have been, repealed or superceded. Meanwhile, I’m hardly convinced that decades of activist jurisprudence could be rolled back — and I’m certainly not persuaded that it could be done more quickly than the repeal of a Constitutional amendment. For example, tell me exactly what could be done under our regime to reverse the Supreme Court’s banning of sodomy laws under Lawrence. I’m against sodomy laws, but I don’t think they’re necessarily unconstitutional. In effect, the Supreme Court amended the constitution just last year and the pro-gay marriage folks cheered.
Of course, there are other arguments against an FMA, but particularly since so many advocates of gay marriage openly celebrated the flagrantly illegal weddings in San Francisco and elsewhere as well as the flagrantly activist re-writing (i.e. “tinkering” “changing” etc) of the Mass. State constitution, it’s increasingly difficult to take their arguments as good faith efforts. Indeed, my guess is if there was hope it passing we’d be hearing how we need an FMA to require all states to recognize gay marriages, the sanctity of the Constitution notwithstanding.