Jilted At the Altar

Charles Krauthammer’s got me puzzled, and not for the first time. In a column written subsequent to the Marriage Protection Amendment’s failure (by 18 votes) to pass muster in the U.S. Senate, he pretends to take the side of those who favored the amendment - tweaking opponents, like Senator Kennedy, who called it "a distraction from the nation’s business" - then falls into his usual pattern of trying to straddle both sides of a fairly important battle line, which has the effect, in the end, of fighting for only one.

In essence he is opposed - for now - based on what he claims are "the two possible grounds for the so-called Marriage Protection Amendment: federalism and popular sovereignty." [His use of "so-called" also puzzles.] On both counts the amendment’s supporters come up short, in the first case because

...Congress’ Defense of Marriage Act explicitly prevents the state-to-state export of gay marriage. Should DOMA be overturned, that would justify a constitutional amendment to prevent one state from imposing its will on the other 49. But it has not been overturned. And under the current Supreme Court, it is unlikely to be. The Marriage Protection Amendment is thefore superfluous.

In other words, DOMA’s provisions override our expectation that the Full Faith and Credit Clause might require other states to recognize the oxymoronic gay marriages contracted in a place like Massachussetts. He certainly has more faith than I that, should DOMA be overturned, the U.S. Congress would move with alacrity to pass that amendment. It’s been my impression that, as Supreme Court decisions run more and more counter to a former way of things, members of Congress seem inspired to cultivate cowardice, not courage. They begin to waffle, sit on the fence, hedge their positions. Sometimes they even flip-flop.

Even so, to this point one could say that Krauthammer seems to share in spirit with the amendment’s supporters a reverence for marriage as the union of man and woman, and that his position is not unreasonable. He did say one peculiar thing in this section that gave me pause:

Federalism, however, is meant to allow states the autonomy of social experimentation (as with Oregon’s legalization of assisted suicide) from which other states can learn. It is not intended to force other states to follow.

Oh. See, I didn’t know that. I didn’t realize the constitution was meant to provide legal cover for states who want to turn their citzens into lab rats, experimenting, say, with killing their fellows so that other states can figure out whether or not it’s a good idea. Extended to marriage, what experiments might be allowed, or prohibited? The imagination reels. Perhaps it’s just a momentary glitch and I’m reading too much into it.

But it was hard to read the article straight through because I kept stumbling over these peculiar utterances, more of which came to light when he moved on to his second ground: popular sovereignty.

Gay marriage is a legitimate social issue...

Sorry, I had to stop right there, because I don’t think it’s a legitimate issue. It’s a narcissistic social construct masquerading as an issue. Yes, we can legalize "it" so that homosexuals can live under the same roof, collect all the financial benefits of a real marriage, and do whatever else it is they do, but it still won’t be a marriage. I guess these days if enough members of a tiny minority start screaming that the rest of us owe them something because we have it and they don’t, even though the thing they want in the form they want it doesn’t exist, you’ve got yourself a legitimate issue.

…to be decided democratically...

Stopped again by the realization that the legislatures of many states could by statute - or their citizens via constitutional referendum - legalize gay marriage. I suppose that in the back of one’s mind one knows such a thing is possible. We tend to trust the people more than the judges because we think them less likely to impose intellectual atrocities on their neighbors. If the issue of abortion were left up to them, it seems likely that the currently allowed nine month period for unobstructed butchery would suffer serious restriction. (In my own state last election, the people amended the constitution to require parental notification prior to a minor’s abortion. It was struck down by the Florida Supreme Court as unconstitutional, even though we went about it constitutionally.) So, too, with gay marriage we’d expect the people to be more reserved in the rush to legality. But what if they did legalize it? Would they?

Krauthammer goes on:

The problem is that imperial judges are legislating their own personal preferences, striking down popular will and calling it constitutional law.

Yes, I remember Roe v. Wade, Lawrence vs. Texas, Griswold, et al.

Most notoriously, in Massachusetts a total of four judges out of seven decided that the time had come for gay marriage. More recently, in Georgia and Nebraska, judges have overturned anti-gay-marriage (state) constitutional amendments that had passed with more than 70 percent of the vote.

All so true. So what’s to be done about it? He shares my concern:

So why not have a federal constitutional amendment and smite the arrogant solons of Massachusetts, Nebraska and Georgia, and those yet to come, all at once?

Sounds good to me, but:

Because it is an odd solution for a popular-sovereignty problem to take the gay marriage issue completely out of the hands of the people...The MPA actually ends up defeating the principle it sets out to uphold.

But...I thought a constitutional amendment was the voice of the people. It would have to pass through an awful lot of state legislatures whose members, in general, will probably vote the way they think the people who elected them want them to vote. Well, even if I granted him the point (which I don’t), I knew we still shared that self-same reverence for the union of man and woman (one man and one woman, to be precise, though he never says it), so I felt sure he’d offer a solution. And he does, but first offers this in further protest:

Once the constitutional amendment is passed, should the current ethos about gay marriage change, no people in any state could ever permit gay marriage.

Oops. Looks like the game’s been given away. We don’t share that reverence after all. If the ‘ethos’ - which must be a word describing a mental state in which one is allowed to have an ethic absent the necessity of actually committing to it, a word walking that precisely neutral line between right and wrong - changes, will Mr. Krauthammer be satisfied with it? Maybe not. Maybe he’d say that, though he disagrees with the result, he must yield to the popular will. It is what defines us as a democracy, which left me to wonder if this is what democracy comes to, and what our constitution permits: any result as long as it expresses the popular will, the most fundamental principle our constitution upholds. Or is it the principle upon which our constitution is founded?

Mr. Krauthammer does offer the aforementioned solution, short and long-term versions of it, but it’s coming to seem like a tired one. In the short term, he says, the people of Massachusetts can amend their state constitution if they so desire, when he’s just finished telling us that state supreme courts in Nebraska and Georgia have overturned such amendments. In the long-term it means "electing presidents who nominate John Roberts and Sam Alito rather than Stephen Breyer and Ruth Bader Ginsburg." And Sandra Day O’Connor and Anthony Kennedy and David Souter, all appointed by Republicans. Sounds like a crap shoot to me. He also concludes by expressing his irritation with the possibility that the constitution might become "pockmarked with endless policy amendments. The Constitution was never intended to set social policy."

I’d always assumed that Prohibition was motivated by social policy, and that so was its repeal. After consulting at length (just prior to sitting down) with a bottle of Miss St. Pauli Girl and several of her identical sisters, I’m glad that latter one’s in there. And it seems that marriage ought to be at least as important an issue as legal beer. So let’s pockmark that constitution.

On the whole, I came away wondering if there were any right left safe from the popular will, or any abomination that it might not return to us - could the popular will re-institute slavery, segregation? - and with the realization that there are certain matters I don’t want left to its mercy. I came away with an impression of a constitution that permits anything and protects nothing - especially if that ‘nothing’ is a moral remnant of our Christian past - and whose relationship to any permanent concept of virtue has been severed. I guess they’ve gotten a divorce, the no-fault kind. Which thought will lead, I hope, to a follow-up post in the near future.
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Comments:

Lydia:
Great post. I liked "let’s pockmark that Constitution."
Yes, and how about women’s voting rights? There’s a case of social policy in the Constitution. In fact, we’d be a lot better off if people who wanted to put social policy in place _did_ try to do it by way of amending the Constitution. That would put some sort of constraint on what they could do. As it is, the text of the Constitution has remained unchanged for many years but social policy has been consistently dictated at the federal level by way of a) federal laws in obvious violation of Amendment 10 and b) federal judicial decisions that lyingly misinterpret the Constitution.
There’s an air of special pleading about these attempts to oppose a marriage amendment _in principle_. It would be a different matter if they had some specific objection to its text or a different one to propose instead. I could even listen with patience if they wanted to argue for some probable negative consequences–e.g. that this would provide an excuse for our bizarrely arrogant federal judiciary to make the thing mean exactly the opposite of what it does mean. Such things have been known to happen. But the idea that "this isn’t the sort of thing we should be doing by way of a federal Constitutional amendment" is a non-starter and is, to my mind, an obvious attempt to look "balanced" or something stupid like that. It’s as though the lefties can perform any shenanigans they like with the Constitution by way of the judiciary but conservatives aren’t even supposed to attempt the honest and constitutional method of blocking such moves. Tie those hands! Tie them! Tie them! Why should we? -------------------------------------
July 3rd, 2006 at 3:33 pm
Maximos

Laying aside for the moment the fact the controversy implicated the momentous question of popular sovereignty, and the relationship of the same to the Constitutional status of the judiciary, it seems to me that the entire gay (simulacra of) marriage controversy has brought out of the woodwork (or is that something more like slithey toves?) the same sort of ‘conservatives’ who were aghast at the original First Things End of Democracy symposium. The sort of conservatives, that is, who, while they may profess adherence to some or other religion or philosophy, are ultimately more loyal to the notion that there is nothing that can be permitted to challenge the legitimacy of the government; they are more loyal to a system of politics than to any transcendent norm that might be thought to inform that system - and that holds true even if one believes that the ’system’ of politics with which they identify the Constitution is, in fact, not the Constitutional system at all.
Phrased differently: they elevate procedure over principle, in homage to one of the signature intellectual maneuvers of all liberals; and that suggests, as also in the case of liberals, that procedure is merely the public face of an alternative set of principles, of which the blessed sacrament of autonomy (choice in everything!) is foremost. Which indicates that certain conservatives are really "conservatives" - that is, liberals who take more exceptions from the common commitments of liberalism.
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July 3rd, 2006 at 8:45 pm
William Luse

Fine comments as usual from you two. Yes, Lydia, I had thought of including women’s suffrage but backed off for fear of pissing off the ladies, lest they think that I think their vote is less than essential. Which it is, by the way, let me add in a hurry. Essential, I mean.
"…the idea that… a federal Constitutional amendment" is a non-starter… is, to my mind, an obvious attempt to look "balanced" or something stupid like that." Of course, they think it’s the politically brilliant thing to do. They never seem to understand what it looks like from the outside, and how tiresomely common a position it is.
Maximos, I remember that First Things symposium, and I think we see evidence of the symptoms displayed in response to it - by those who, as you put it, "…are more loyal to a system of politics than to any transcendent norm that might be thought to inform that system " - in cases as far ranging as the Ten Commandments case in Alabama and the ongoing attempts to embrace the Iraq War as a just one. (e.g. George Weigel comes to mind.) The general drift of your comment points in the direction that I want the follow-up to take. Let’s hope it gets done.
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July 3rd, 2006 at 10:33 pm
Maximos

About that Alabama Ten Commandments case, let me just state something that I’ve not seen anywhere in the conservative press or blogosphere: while Moore is almost certainly a self-promoter given to bombast and grandiloquence, the facile equation, often explicit among conservative critics of his defiance, of judicial diktats with the rule of law, is an ominous portent. A year or two ago, after reading one of George Neumayr’s columns on a Supreme Court ruling extending the benefits of the American legal system to enemy combatants - a ruling which, regardless of the merits or lack thereof of the war, is surely a novelty in our legal tradition - I fired off an impassioned plea for defiance of the courts and a reassertion of the role of the other branches in the interpretation of our Constitutional traditions.
The ominous portent of the Moore case is that it indicates a willingness among conservatives to enjoy the frisson of anti-imperial rhetoric trained on the Robed Masters, accompanied by a polite demurral when presented with an abundance of opportunities to, shall we say, walk the talk. Talking is all they wish to occur, for in the end - and here I freely draw upon the subtext of so much of this year’s mainstream conservative response to such things as the Crunchy Con idea - these "conservatives", however much they rely upon the cultivation of popular grievances against distant liberal elites, are more fearful of real self-government exercised by their own voting blocks than they are of the continued consolidation of the liberal pseudo-constitution. In other words, popular government is acceptable only when it affirms the establishment, political and economic.
Pfui!
About Weigel, I am not knowledgable enough in Just War doctrine to comment, save to note that pre-emption appears to me to be dubious from the standpoint of the tradition; and while I remember a somewhat involved discussion with Paul on this point in a Redstate thread at some point in time, concerning the pertinence - if any - of WMD to this matter, the sense of standing outside the tradition while arguing for the policy cannot be evaded.
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July 3rd, 2006 at 11:17 pm
William Luse

"the facile equation of judicial diktats with the rule of law" - precisely what it’s all about. See also, the case of Terri Schiavo.
We’ll talk about pre-emption sometime. I think a case can be made for it, but not in this case.
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July 4th, 2006 at 12:14 am
Lydia:
I’ll go even farther, Maximos. I’ve seen Moore in action here at Western, and I liked him. Actually, I liked him a lot, even more than I expected to. He didn’t seem like a self-promoter, and he was well-informed and mild-mannered. And he was very careful to make distinctions. We knew the people in charge of the "show" and got a personal introduction afterwards, and even in the brief couple of minutes of conversation he made a fascinating legal distinction between his own behavior and civil disobedience. He also pointed out that the federal court could have made a direct court order to someone else–some private actor, like a contractor–to remove the monument. But they wanted to make him do it to force him to acknowledge their supremacy. Finally, I don’t think I’ve ever seen anything so chilling from a political perspective as the video clip of Bill Pryor asking Moore over and over again, "Will you continue to acknowledge God if you are returned to your position?"
The federal ruling in that case was clearly out of line, and Moore was clearly right, legally. The equation of judicial statements with "the rule of law" is a very bad thing, and it looks to me like our republican form of govt. is pretty much kaput because no one in the other branches will challenge it. Terri’s case was a striking example: Two-week execution by judicial fiat, with the cops overseeing it, in the name of "the rule of law."
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July 4th, 2006 at 5:20 am
William Luse:

I, of course, have never met Moore, but on the tube he seemed refreshingly articulate. The conservative establishment did not rally to him, or at the least was very fragmented in its response to the dilemma he presented. It was, his opponents brayed, about that "rule of law," which remains the rule (in their opinion) not merely when it’s an ass, but as well when it’s plainly wrong.