In its lead story analyzing President Bush’s endorsement of a constitutional amendment to ban “gay marriage” last week, The Washington Post wrote, “With President Bush’s embrace yesterday of a marriage amendment, the compassionate conservative of 2000 has shown he is willing, if necessary, to rekindle the culture wars in 2004.”[A Move To Satisfy Conservative Base, By Dana Milbank, Feb. 25, 2004, also here]
The Post’s lead acknowledges what many of the president’s original supporters on the right refused to see: that the phony “compassionate conservatism” he smirked about when running for president is incompatible with the cultural conservatism to which the vast majority of real conservatives adhere and which he is now “rekindling” in order to get himself re-elected.
Mr. Bush fooled most conservatives once in 2000. What he is doing now is trying to fool them again.
We will hear a good deal more gabble about the “gay marriage amendment” in the course of the current election season, but that will be the end of it.
For decades now, conservative Republicans have trotted out one pet amendment after another that never goes anywhere—the Balanced Budget amendment, the School Prayer amendment, amendments to ban abortion, amendments to outlaw burning the flag and probably several others I have forgotten or never knew about.
Not one has ever even passed a single chamber of Congress, let alone been ratified.
Why do conservatives propose them or endorse them? Republicans peddle this constant stream of amendments because they know very well they will never go anywhere, that they will never be called on to vote on them or work for them, and that in the meantime the grassroots constituents who demand them will be placated by the simple rhetoric that “endorses” or supports them. Amending the Constitution to correct flaws conservative politicians are unwilling to confront in serious ways is a cheap and easy way to make everybody happy and make sure nothing is done.
In the case of homosexual “marriages,” I have no problem in refusing to recognize them as real or legal. Persons of the same sex can no more marry each other than dogs and cats can become congressmen, but since the whole purpose of the movement for “gay marriage” is to subvert cultural institutions and normalize the abnormal, there’s not much point in arguing about it.
Either you get it and oppose “gay marriage” or you don’t and support it.
But a constitutional amendment is the wrong tactic because, as I have just argued, it will never pass, and even the conservatives who support it will not push it seriously.
It’s the wrong tactic also because it entirely misses the point.
You amend the Constitution when there is something wrong with the Constitution. But there is nothing wrong with the Constitution. What is wrong is with the American political class and especially the judges it keeps appointing and refuses to control.
There are ways to stop the judicial legitimization of homosexual marriage without amending the Constitution. We already have the 1996 Defense of Marriage Act, and states may (and should) pass their own laws against same-sex marriages.
But most important is the measure most Republicans will never embrace because it would mean seriously fighting and even destroying judicial liberalism once and for all.
That measure is based on the provision of the Constitution that authorizes Congress to limit the appellate jurisdiction of the Court.Article III, Section 2 of the Constitution says, “the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.”
Under that language, Congress cam simply forbid the Court even to hear, much less rule on, let us say, cases involving the marriage of persons of the same sex.
Or cases involving capital punishment. Or cases involving flag burning. Or cases involving whatever the Congress decides to forbid the Nameless Nine from spending their vast intellectual resources and spiritual energies upon.
With a stroke of the congressional pen, “judicial activism” could be ended, and it could have been ended decades ago, had conservatives been at all serious about what they claim to be serious about.
If Congress ever did use its powers to curtail judicial misrule, the judges would get the message, and those who didn’t would find themselves in trouble.
As it is, why shouldn’t judges hand down the preposterous and socially destructive rulings they have inflicted on the nation for the last 40 years?
No one—least of all conservatives—has ever done anything to stop them or deter them.
Real conservatives who really want to stop both homosexual “marriages” and the judicial tyranny that has usurped unconstitutional power in this country would be well advised to find themselves another means of accomplishing those goals than amending the Constitution.
While they’re at it, they might find themselves another president too.