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March
5, 2004
Marriage
& the Constitution
Time for
an Amendment?
by Steve
Farrell
Do we need to amend the Constitution to defend
the age old tradition of marriage? Professor
Richard Wilkins, former Assistant to the Solicitor
General of the United States, and the founder and
managing director of Defend Marriage (a project of
United Families International), believes so. (See
The
Pivotal Battle of Our Age Has Begun: And We Cannot
Afford to Lose, by Professor Richard G.
Wilkins.)
A little over a week ago, he asked me to join
Defend Marriage as their press director. I
accepted; and why not? Is there a more vital cause?
The traditional family is the transmission belt of
the values of a free society. You know this. I know
this. Our enemies know this. Destroy the family,
and a nation is ripe for revolution. Let's not
mince words. The family is key; and there are
forces that would like to take the traditional
family out, forever.
We can't let them.
Despite the settled belief that this is true,
however, Wilkins notes, many are confused as to why
the federal constitution needs to be amended to
save marriage. "Isn't this an issue for the
states?" they ask. "Won't this diminish the 'sacred
nature' of the Constitution?" others
wonder.
"These are substantial concerns," he says.
"However, these very concerns -- rather than
suggesting that we "leave the Constitution alone"
-- now impose upon the people a duty to provide a
constitutional definition for marriage. Unless the
people clearly establish the constitutional meaning
of marriage, the judges will do it for us -- and,
in the process, erode the very idea of a written
Constitution, expand judicial power and upset the
vital balance of power established by the Framers
of the United States Constitution."
Good points. Professor Wilkins suggests we
consider the following:
- Although it appears the Constitution was
written to leave questions like marriage to the
states, this has not stopped federal courts from
intruding where the Constitution gives them no
license to tread. The United States Supreme
Court has decreed that states can not 'demean'
any adult consensual sexual relationship.
Lawrence v. Texas. This new rule --
nowhere supported by the text of the
Constitution nor by the history, traditions or
practices of the American people -- will shortly
require all states in the nation to recognize
any and all consensual sexual relationships as
'marriage.' The Massachusetts Supreme Judicial
Court, in mandating homosexual 'marriage,'
merely applied the reasoning of the U.S. Supreme
Court to its state constitution. The Mayor of
San Francisco, in unilaterally issuing marriage
licenses contrary to controlling California law,
similarly relied upon the reasoning of
Lawrence to defend the legality of his
actions.
- Therefore, whatever the Constitution
once provided, all rules related to
marriage have now been subsumed by a
'constitutional analysis' previously unknown to
the law. State legislatures, and the people they
represent, no longer control the meaning of
marriage or the hundreds and thousands of legal
rules associated with marriage. All such
questions, henceforth, will be governed by
decisions of state and federal courts. And, in
light of the expansive 'constitutional analysis'
adopted in Lawrence, those decisions will
not be guided by either the words of the
Constitution nor the traditions, history and
actual practices of the American people.
- In light of the foregoing, anyone concerned
about preserving the structure and content of
the American Constitution should understand why
the words 'marriage' and 'constitutional
amendment' need to be linked, to save the social
viability of marriage, and integrity of the
Constitution itself.
He makes good sense. He continues:
- 1. A Constitutional amendment will
restore the crucial understanding that American
government operates under a written
Constitution.
-
- As Chief Justice John Marshall noted in the
famous decision of Marbury v. Madison in
1803, America is governed by "a written
constitution" and "the framers of the
constitution contemplated that instrument as a
rule for the government of courts, as
well as of the legislature." (Emphasis by
Justice Marshall.) Because America operates
under a written Constitution that is as binding
on the courts as on any other branch of
government, judges must adhere to the text of
the Constitution and interpret and apply its
terms consistently with the traditions, history
and actual practices of the American people. Any
other course, as Chief Justice Marshall noted in
Marbury, 'would subvert the very
foundation of all written constitutions.'
-
- Modern courts have dangerously ignored the
teachings of Marbury.
-
- The 'constitutional analysis' announced by
the Supreme Court in Lawrence tears
judicial review away from the words of the
document as well as the traditions, history and
actual practices of the American people. Many
law professors and philosophers enthusiastically
applaud the idea of a "living Constitution;" a
document that transcends words, definitions and
the restrictive bonds of history and tradition.
But a document as fluid, unfettered and free as
the "new Constitution" unveiled in
Lawrence bears little resemblance to the
Constitution that, for most of its 215-year
history, has provided for the democratic,
legislative resolution of most controversial
moral and social debates.
-
- Under the "new Constitution" announced in
Lawrence, the more divisive, difficult
and debatable the controversy, the more likely
it is that a court -- rather than a legislature
-- will settle the matter. That is not the
Framer's Constitution. It is not what the
written text demands. But it is what the courts
have now decreed.
-
- Modern courts feel free to ignore or alter
the text of the constitution at will. A
constitutional amendment on marriage, by
forcefully rejecting the judges' latest
excursion from constitutional text and history,
will forcibly -- and properly -- remind the
judges that their role is to adjudicate, not
legislate. A constitutional amendment is
necessary to revive the idea that is 'the very
foundation of all written constitutions;' that
is, that the Constitution provides 'a rule for
the government of courts, as well as of
the legislature.' Marbury v. Madison
(emphasis in original).
The courts need to be checked. He
adds:
- 2. A constitutional amendment will
restore the proper balance of power between the
judiciary and the representative branches of
government.
-
- Under the 'new Constitution" drafted by the
Supreme Court in Lawrence, state
legislatures may no longer intrude upon 'liberty
interests' closely connected with an
individual's own views regarding 'the meaning of
life' and 'mystery of the universe.' But if the
definition of marriage (an understanding as old
as time) violates constitutional strictures,
what democratic judgments will the 'mysteries of
the universe' invalidate next? No one knows. The
judges have given us a poem -- a poem as vague,
expansive or restrictive as the next metaphor or
lyrical couplet favored by five members of the
Supreme Court.
-
- Modern social activists (and too many
judges) have either forgotten or chosen to
ignore that most governmental decisions are
not controlled (and can't be
controlled) by the precise language of the
Constitution. If the 'correct' answers to
pressing questions are fairly debatable, those
questions must be -- indeed, can only be
-- resolved by legislative action.
Professor Wilkins and Defend Marriage wants the
power to return to the people:
- The expanding reach of American
constitutional law has rendered the public
increasingly oblivious to its role as the
primary source of decision making power under
the United States Constitution. By inventing and
enforcing "rights" nowhere evident in the
language of the Constitution or the history and
traditions of the American people, lawyers,
judges and law professors have slowly eroded
democratic decision making, reducing or
eliminating the people's popular control over an
ever-expanding range of fairly debatable
controversies.
-
- The Constitution was not drafted, nor was it
intended, to turn over marriage and marital
policy to the federal courts. Because the courts
have now concluded otherwise, a constitutional
amendment is needed to restore democratic
balance. Without a constitutional amendment, the
Supreme Court -- and not the people --
ultimately will determine what marriage means.
With all due respect to the Honorable Court,
this is too important a decision to be made by
five people in black robes.
He concludes:
- The Founders did not explicitly put marriage
in the Constitution. But the courts
have.
-
- By placing marriage in the Constitution, the
judges have taken marriage out of the realm of
representation and have placed in their court.
By so doing, the judges have done violence to
the very idea of a written Constitution, have
eroded legislative power, and have significantly
expanded their own power.
-
- A constitutional amendment is needed, not
only to preserve marriage, but to restore
constitutional order.
I agree. We can't turn over the fate of the
family to five folks in robes. Judicial tyranny is
not for you and not for me. It's time to reign
these judges in, and remind them that
constitution's are set up to preserve the values of
a society, not overthrow them.
Sign the petition in support of a constitutional
amendment to defend marriage by visiting http://www.defendmarriage.org.
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