Saturday, May 06, 2006

Federalism, Constitutionalism, Originalism and Gay Marriage

Americans increasingly believe that states are incapable of managing anything of importance. They also believe that ‘activist’ state court judges are forcing their will on the public. As a consequence, self-described conservatives support a federal constitutional amendment to impose a national solution to a dispute over marriage caused by meddlesome state judiciaries.

The Marriage Amendment solves the substantive issue of marriage rights by eliminating the substantive rights of states under our federal system to chart their own course in areas of law the Founders deliberately keep from the national government. And here is where the real problem with the Federal Marriage Amendment should be most apparent to conservatives.

Courts, even activist state courts, are not organized to serve the legislature. Legislatures are not the sovereigns of any state – that is a role reserved to the people. The people speak through their constitution. The courts interpret the constitution. Where an interpretation is wrong or wrongheaded, it is the people – not the legislature – who reserve to themselves the power to override the judiciary. If the Massachusetts courts impose an interpretation to the Massachusetts constitution that offends the people of Massachusetts, then the people can amend their ‘basic law’ to better reflect their will. Indeed, the people of Massachusetts are even today engaged in that healthy political exercise that may – or may not – produce an amendment to the state constitution. The Federal Marriage Amendment short circuits state authority over matters traditionally at the core of state governmental administration. It suggests that states – and their citizens -- are incapable deciding for themselves what they will do with marriage.

Perhaps it is time to admit that the great federal experiment of 1789 has ended in failure. Conservative supporters of the Marriage Amendment have embraced the sort of fraudulent federalism that encourages a pretended retention of power in that states – but only to the extent convenient to the federal master. These conservatives act like the heirs of a federalization undertaken by generations of Democratic administrations. These conservatives accept that the only way to ensure the good behavior of states is to reduce them to administrative appendages of the federal apparatus. But for people who believe that the imposition of factional political beliefs ought to trump everything else, including a fidelity to the political structure inherited from the Republic's founders, this similarity makes no difference. For these people it may be necessary to destroy the Republic in order to save it. These people have made a very modern sort of political choice--that the original understanding of behavior ought to be more important than than original understanding of the structure of government created by the founding generation.

But other conservatives may find in the Marriage Amendment a more deadly poison to our Republic than whatever threat might be posed by the occasional marriage between people of the same sex. They may see a troubling agenda hidden within the federal solution to the socio-cultural issue of marriage. These conservatives may find it disturbing, and suspiciously demagogic, to use the emotional appeal of moral issues to strip states of their authority and undo the basic governance structure of the Republic. They believe the one thing that is unnecessary at the federal level is the making of a substantive policy choice in a field of law traditionally left to the states. To paraphrase Justice Holmes' famous dissent in Lochner v. New York (198 U.S. 45 (1905)), a constitution is not intended to embody a particular social theory. To embody such theory as constitutional dogma, especially in the name of original understanding, is to corrupt the most basic foundation of that original understanding, as well. See generally, Backer, Larry Catá, Disciplining Judicial Interpretation of Fundamental Rights: First Amendment Decadence in Southworth and Boy Scouts of America, and European Alternatives. Tulsa Law Journal, Vol. 36, No. 1, p. 117, Fall 2000.

Whatever one thinks of the nature of marriage or of the benefits of governmental regulation of affective relationships, the place for such debate affecting constitutions should occur at the state level. The Federal Marriage Amendment undercuts a process of political engagement the founders left to the states. It is in the states that the discussion ought to remain. To do otherwise is to proceed with the destruction of state power through emotive subterfuge. See Backer, Larry Catá, Race, 'the Race', and the Republic: Re-Conceiving Judicial Authority After Bush v. Gore. Catholic University Law Review, Vol. 51, No. 4, pp. 1057-1114, 2002.

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