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How not to Argue Against a Constitutional Amendment:

This op ed by prominent federal Judge J. Harvie Wilkinson criticizing anti-gay marriage amendments has gotten a lot of attention in the blogosphere (e.g. here, here, and here). I definitely agree with Judge Wilkinson's conclusion - that anti-gay marriage constitutional amendments at both the state and federal level are deeply misguided. But I have serious doubts about some of his reasoning:

Twenty states have constitutional amendments banning gay marriages; many more are in the offing. On the ballot this fall in Virginia and five other states will be proposed constitutional amendments banning gay marriage. Passage of the amendments is all but foreordained, but the first principles of American law will be further endangered....

The Framers meant our Constitution to establish a structure of government and to provide individuals certain inalienable rights against the state. They certainly did not envision our Constitution as a place to restrict rights or enact public policies, as the Federal Marriage Amendment does.

Ordinary legislation — not constitutional amendments — should express the community's view that marriage "shall consist only of the union of a man and a woman." To use the Constitution for prescriptions of policy is to shackle future generations that should have the same right as ours to enact policies of their own. To use the Constitution as a forum for even our most favored views strikes a blow of uncommon harshness upon disfavored groups, in this case gay citizens who would never see this country's founding charter as their own.

I don't think that a proposed constitutional amendment should be rejected merely because constitutions shouldn't "enact public policies." To the contrary, one of the main reasons for having a Constitution in the first place is to "enact" certain "public policies" in a way that makes it very difficult for government officials to change. The First Amendment certainly enacts a public policy on freedom of speech and religion; the Fifth Amendment Takings Clause enacts a policy on the protection of private property; the Fourth, Sixth and Seventh Amendments enact policies on various issues in criminal and civil procedure, and so on.

Similarly, it isn't a very compelling argument to claim that an amendment should be rejected because it "strikes a blow . . . upon disfavored groups . . . who would never see this country's founding charter as their own." The First Amendment surely "strikes a blow" against "disfavored groups" who oppose freedom of speech and religion, such as Communists, Nazis, and radical Islamists. Most members of these disfavored groups surely don't see the Constitution as "their own." The Thirteenth Amendment was bitterly opposed by slaveowners who saw it as "strik[ing] a blow" against the very foundation of their way of life. Virtually any Amendment that accomplishes an important goal "disfavors" at least some groups. The real question is whether it is justified in doing so. The difference between gays victimized by anti-gay marriage amendments and slaveowners harmed by the Thirteenth Amendment is that the latter deserved what they got, while the former, in my view, definitely do not.

Nor am I persuaded by Wilkinson's argument that constitutions should never be used to "restrict rights." After all, the Thirteenth Amendment not only restricted but actually abolished the right to own slaves, a right that had been protected by the Supreme Court in several major decisions such as Dred Scott and Prigg v. Pennsylvania. Yet this restriction of a "right" was surely justified. Perhaps Wilkinson meant to say that constitutions should only avoid restricting those rights that are desirable and just. "Bad" rights are fair game. But if so, gay marriage opponents have no reason to accept his argument, since they believe that the claimed right to gay marriage is completely unjustified. Once again, the real issue is not whether "rights" have been restricted, but whether the restriction is justifiable or not.

Finally, Wilkinson is on to a somewhat better argument when he says that we should not "shackle" future generations with a constitutional mandate unless we are quite sure that the rule it establishes is sound. Fair enough, but this still should not deter those gay marriage opponents (and there are many of them) who feel very certain that they are right about the issue. Moreover, it's important to remember that most state constitutions are far easier to amend than the federal constitution is - which is one reason that so many state anti-gay marriage amendments have been adopted so quickly, over the last two years. At the state level, constitutional "shackles" are not nearly as tight as they are at the federal level.

In sum, Judge Wilkinson is absolutely right to oppose anti-gay marriage amendments. But the real reasons to do so are that gay marriage is right and just and that the threat of runaway "judicial activism" cited by supporters of the amendments is vastly overblown (as co-blogger Dale Carpenter has documented on numerous occasions, including here). It isn't because constitutions should not be used to "enact policies" or "restrict rights" or "shackle" future generations. Almost any constitutional amendment does some or all of these things.

UPDATE: It may be worth clarifying the fact that my main point is that Judge Wilkinson's arguments could be used against virtually any constitutional amendment, including many (such as the Bill of Rights and the Thirteenth Amendment) that command overwhelming support and that he himself would probably endorse.

UPDATE #2: Perhaps the most common objection raised against my argument by various commenters is some variation on the claim that Judge Wilkinson is merely arguing that we should be cautious about constitutionalizing our policy preferences, other things equal. I don't necessarily disagree with this sentiment. Unfortunately, Wilkinson's argument goes far beyond it. He categorically states that constitutions should not be used "as a place to restrict rights or enact public policies," or to "shackle future generations." Nowhere does he qualify these statements by suggesting that they hold true only if other things are equal. If he had meant to qualify his reasoning in this very significant way, I think that Wilkinson would have said so explicitly. Moreover, an "other things equal" interpretation of Wilkinson's argument greatly undermines his case against the anti-gay marriage amendments. After all, those who support such amendments emphatically do not accept the premise that other things are equal because they believe that gay marriage is a grave threat to important public values. An "other things equal" argument against the amendments only has merit if you assume that the establishment of gay marriage is not a significant problem. But if you believe that (as I certainly do), you probably wouldn't support anti-gay marriage amendments in the first place.

Related Posts (on one page):

  1. How not to Argue Against a Constitutional Amendment:
  2. Judge Wilkinson Comes Out Against State and Federal Marriage Amendments:
Roger Schlafly (www):
Wilkinson wants to leave the matter to the democratic process. States that pass state constitutional amendments are doing exactly that -- letting the popular democratic process decide the issue instead of the courts.
9.8.2006 12:47am
Medis:
I think you are being a bit unfair to Judge Wilkinson's argument. I think in context, his reference to "public policies" in contrast to "establish[ing] a structure of government and to provid[ing] individuals certain inalienable rights against the state" makes a certain amount of sense. The basic idea would be to separate out decisions involving the fundamental structure of government and the most basic civil rights of the people from those decisions that deal with other sorts of particular problems, placing the former decisions in the constitutional category and the latter in the legislative category. So, if the public policy issue in question involves marital policy, as opposed to something like the structure of government or basic civil rights, it shouldn't be in the constitutional category. A similar analysis would apply to your proposed right to own slaves: although the right not to be a slave is plausibly a basic civil right, the right to own slaves is arguably not a basic civil right.

All that said, I'm not sure how workable these distinctions really would be in theory or practice, and there are certainly going to be boundary cases where it will not be clear if we are talking about basic civil rights or just certain specific policy issues (criminal procedure issues leap to mind). But I think Judge Wilkinson's proposed distinction is not so obviously wrong as you suggest. Moreover, in a constitutional system we need to have some theory as to what belongs in our constitutions, as opposed to what can just be left to ordinary legal processes, and as a first cut Judge Wilkinson's theory makes sense to me.
9.8.2006 12:56am
Medis:
Roger,

Judge Wilkinson wants to leave the issue to "NORMAL democratic processes" (emphasis added), by which he means ordinary legislation. And as he points out, constitutionalizing the issue actually increases the role and power of the courts. Finally, on the subject of the need to counteract what the state courts have done in the name of their existing constitutions, he writes:

"Where is the threat that justifies so radical a break with our constitutional heritage? State courts in Georgia, New York and Washington have recently rejected invitations to follow Massachusetts and find a right to same-sex marriage in their constitutions. The great majority of state court judges -- more than 80 percent by some counts -- are subject to election in some form and unlikely to overturn state legislatures on so volatile a matter as same-sex marriage. States have numerous tools that enable them to reject objectionable marriages from other jurisdictions -- tools that have long been the basis for refusing to recognize marriages involving polygamy, incest, and underage or mentally incompetent parties."

So, I think Judge Wilkinson has made a good case that if your concern is the courts having too large a role to play in this area, the "cure" (constitutional amendments attempting to define marriage) may be worse than the "disease" (the possibility that courts will try to force gay marriage on unwilling states).
9.8.2006 1:04am
Ilya Somin:

I think you are being a bit unfair to Judge Wilkinson's argument. I think in context, his reference to "public policies" in contrast to "establish[ing] a structure of government and to provid[ing] individuals certain inalienable rights against the state" makes a certain amount of sense. The basic idea would be to separate out decisions involving the fundamental structure of government and the most basic civil rights of the people from those decisions that deal with other sorts of particular problems, placing the former decisions in the constitutional category and the latter in the legislative category.


I don't think that this approach saves Wilkinson's argument. Supporters and opponents of gay marriage both believe that their "basic civil rights" are at stake in the battle. Moreover, it's not clear to me why constitutions should only deal with institutional structure and basic civil rights (even assuming that we have the "correct" definitions of these two somewhat vague concepts). If ordinary political processes are highly likely to get an important issue that doesn't fall into one of these two categories wrong, I don't see why it would be wrong to use a constitutional amendment to prevent that from happening.
9.8.2006 1:27am
BobN (mail):
What basic civil right is harmed by same-sex marriage? The right not to be offended?
9.8.2006 1:44am
OrinKerr:
Ilya,

I gather that when you say that this is not the way to make such an argument, you implicitly just mean that you personally don't find the argument persuasive for the reasons you mention? I suggest that because I suspect that a lot of people do find Wilkinson's arguments persuasive, and I assume Wilkinson is trying to persuade that audience by picking arguments that they are more inclined to accept.
9.8.2006 1:46am
RBG (mail):
Isn't the most obvious flaw in Judge Wilkinson's argument his conflation of the nature of federal and state constitutions. I mean, it's one thing to state that the Framers saw the federal constitution as being fundamental about general principles of government structure and so on, but--and this bias is understandable coming from a federal judge--it is, with all due respect, just silly to say the same thing about state constitutions. From fairly early in the history of the Republic, as I understand it, state constitutions have addressed questions that the Framers of the federal constitution would have never thought worth addressing. Current state constitutions reflect this.

To take a state at random, I just looked up the California constitution. Let's see: Article 15 sets down detailed regulations of interest rates and loan payment schedules; Article 19 directs the use of motor vehicle revenues; Article 9 sets forth in fairly excrutiating detail the educational policy of the state; Articles 10 and 10A go on and on about water policy.

Let's see, how about New York? Article I limits divorce, sets permissible working hours; Article X establishes state policy vis-a-vis corporations; Article XIV sketches environmental policy. Florida? Its constitution bars gambling, limits marine net fishing, establishes an Everglades Trust Fund, sets forth policy on high-speed ground transportation, bars smoking in the workplace, limits (and I quote) "cruel and inhumane confinement of pigs during pregnancy," establishes the state's gambling policy, sets the state's minimum wage, creates policy regarding informed consent, provides for delicensure of physicians after multiple incidents of malpractice.

When I first read Judge Wilkinson's piece earlier in the week, I thought it was interesting, if not persuasive. After recalling discussions re state constitutions in law school and actually taking a look at what state constitutions are actually like, I must confess that the Judge's entire premise seems flawed. Certainly, if he were complaining about the FMA, his argument would be persuasive; but simply as a descriptive matter, his premise for arguing against state constitutional amendments is fundamentally flawed. I mean, if it's important to keep our constitutions unsullied by quotidian policy debates, why start objecting now? Am I missing something?
9.8.2006 2:09am
Lev:

Judges began the rush to constitutionalize. The Massachusetts Supreme Court concocted a state constitutional right to marry persons of the same sex. The court went on to say that opposing views lacked so much as a rational basis. In other words, centuries of common-law tradition, legislative sanction and human experience with marriage as a bond between one man and one woman were deemed by that court unworthy to the point of irrationality.

It would be altogether understandable for Congress and state legislatures to counter this constitutional excess with constitutional responses of their own. Yet it would be the wrong thing to do.


Judges began the rush to constitutionalize, and it would be wrong for the legislatures to do anything in response.

This guy should be a private citizen, not a judge.
9.8.2006 2:23am
Ilya Somin:

I gather that when you say that this is not the way to make such an argument, you implicitly just mean that you personally don't find the argument persuasive for the reasons you mention? I suggest that because I suspect that a lot of people do find Wilkinson's arguments persuasive, and I assume Wilkinson is trying to persuade that audience by picking arguments that they are more inclined to accept.


The issue is not whether I personally think Wilkinson's arguments are persuasive or whether other people do. It is whether those arguments are correct or not. For the reasons discussed in the post, I think many of them are seriously flawed. I don't deny that Wilkinson's arguments, like many other unsound arguments, could be persuasive to many people.
9.8.2006 2:50am
OrinKerr:
Ilya,

I don't understand. Wilkinson is making a political argument; he is expressing opinions that appeal to shared values, and that seeks to persuade based on those values. What does it mean for such an argument to be "correct or not"?

Consider the argument that the Constitution should not be amended to "shackle future generations." Your initial response is that shackling shouldn't be a governing concern. But says who? Is there some neutral criteria you are using for determining the importance of these competing values? You are of course entitled to your own values, but I don't quite understand why your approach is "correct" and Wilkinson's is "incorrect."
9.8.2006 3:11am
Ilya Somin:
Orin,

Perhaps I wasn't as clear as I should have been in the post. I assume that Wilkinson is making these arguments because he thinks they are true, not merely because they may appeal to his audience irrespective of their accuracy. Regardless of his intent, it is the accuracy of the arguments that I question.

As to why I think that my points are "correct" and Wilkinson's aren't, I made that case in some detail in my post.

The unifying theme, however, is that Wilkinson's arguments can be used against virtually any constitutional amemdment. To take your example of shackling, any amendment "shackles" future generations at least to some degree. Indeed, such "shackling" is part of the point of having a binding, written Constitution in the first place. Therefore, unless we believe that all proposed constitutional amendments should be rejected, we must conclude that arguments such as the ones I criticized in the post are unsound.

They are unsound because they fail to provide adequate criteria for distinguishing good proposed amendments from bad ones. To further support my point, I also noted that Wilkinson's arguments would justify rejection of most of the Bill of Rights, the Thirteenth Amendment, and other Constitutional amendments that you and I and (presumably) Wilkinson believe were justified.
9.8.2006 3:25am
OrinKerr:
Ilya,

Your argument is incorrect, er, rather, I don't find it persuasive.

I take Wilkinson's point to be a pragmatic preference for caution: all other things being equal, it's better to put the thumb on the scale against constitutional reform, as constitutional reform can narrow the scope of future legislative reform when it may be desirable in light of changes in social attitudes. You can say that you don't like pragmatism or the institutional conservatism Wilkinson's argument presupposes, but that tells us about your personal values rather that the abstract "correctness" of Wilkinson's argument. Also, the fact that pragmatic arguments can apply to any constitutional amendment seems irrelevant to me: Wilkinson is expressing a value, not a rule, and values can be overridden by other values in the settling of a policy preference in a context-sensitive way.
9.8.2006 3:39am
Ilya Somin:
I take Wilkinson's point to be a pragmatic preference for caution: all other things being equal, it's better to put the thumb on the scale against constitutional reform, as constitutional reform can narrow the scope of future legislative reform when it may be desirable in light of changes in social attitudes. You can say that you don't like pragmatism or the institutional conservatism Wilkinson's argument presupposes, but that tells us about your personal values rather that the abstract "correctness" of Wilkinson's argument.

Wilkinson's argument goes far beyond a "preference for caution" when all other things are "equal." He categorically states that constitutions should not be used "as a place to restrict rights or enact public policies," or to "shackle future generations." Nowhere does he qualify these statements by suggesting that they hold true only if other things are equal. Wilkinson is a sophisticated thinker and a good writer. If he had meant to make only an "other things equal" argument, I think he would have said so. Moreover, as I noted in the post, the "shackling" argument is far weaker in the case of state constitutional amendments than federal ones, because state constitutions are relatively easy to amend again in the future.

I therefore stand by my claim that Wilkinson's argument is incorrect. Your reinterpretation of it is far more compelling as a general principle, but at the cost of undermining the case against the anti-gay marriage amendments. If the argument only applies to the extent that all other things are equal, it will be unpersuasive to the vast majority of supporters of these amendments, who surely believe that "other things" are emphatically not equal in this case.
9.8.2006 5:14am
Toby:
The judge, and the structure of his argument, is its own best rebuttal.

People are rushing to enshrine their current opinions in the constitution because they have no faith that the modern judge will be a fair umpire, rather than a legislator substituting his own preferences for the law. Experience has shown that it does not take a large percentage of activist judges to over turn all common understanding of law and precedent.

The judges mode of argument suggests that he personally is another example of same, thus increasing the motivation for constitutional amendment, irrespective of the explicit arguments he makes.
9.8.2006 6:09am
Roger Schlafly (www):
Medis wrote:
Judge Wilkinson wants to leave the issue to "NORMAL democratic processes" ... So, I think Judge Wilkinson has made a good case that if your concern is the courts having too large a role to play in this area, ...
When states like Hawaii, Alaska, Vermont, and Mass. have had their courts turn same-sex marriage into a constitutional issue, then the normal democratic response is to amend the state constitution. Wilkinson's essay is an argument for state constitutional amendments in those states and in other states where the courts may act on these constitutional arguments.
9.8.2006 6:24am
Andrew Hyman (mail) (www):
It's kind of interesting to compare what Judge Wilkinson's writing now to this article he coauthored in 1977: "Constitutional Protection for Personal Lifestyles," in the Cornell Law Review:

Although lifestyle freedoms are not expressly safeguarded, we believe that the spirit of the Constitution operates to protect them....We are aware of the historic dangers that attend judicial departure from specific constitutional mandates. Judging by inference from constitutional provisions, or from the Constitution as a whole, has plunged the Court into difficulties in the past. Notwithstanding textual and institutional difficulties, judicial recognition of lifestyle freedoms as due process liberties better serves the basic purposes of the Constitution than dismissal of them.....Should the state be constitutionally required to abandon an ancient sanction, when abandonment might in time lead to increasing, although statistically unpredictable defections from heterosexual behavior and traditional family life? On the answer to this last question the authors have been unable to agree. Mr. Wilkinson would uphold the state's interest in the preservation of the traditional family; Mr. White would desire stronger empirical proof that the state interest is truly put in jeopardy by homosexual practices among consenting adults. Both authors acknowledge the intuitive elements in their judgments....The right to procreate also suggests a right not to procreate....Only in Roe v. Wade, however, did the right not to procreate gain firm recognition as a lifestyle decision. In upholding the right to abortion, the Court recognized that an unwanted child might create a "distressful life and future," with psychological, physical, and financial burdens for the woman concerned. Although Roe has been severely criticized, the decision is not an illogical extension of the Court's earlier decisions in matters of intimate association. Indeed, if procreation is labeled a constitutional right, it may imply a full freedom of negative choice, in the same sense that marriage implies a full choice not to marry, voting not to vote, and travel to remain at home. For the constitutional right of procreation can hardly be fundamental if one is compelled to exercise it.


I certainly don't want to be held to everything I wrote and thought in 1977. Even so, I find some of these remarks by Wilkinson to be interesting and relevant (not to mention simplistic and absurd). Notice that he implicitly slanders a thousand generations of husbands as compelling their wives to bear unwanted pregnancies, as if many women don't obtain abortions merely because contraceptives failed. He seemed just as oblivious to the best interests of unborn children in 1977, as he is to the best intersts of born children in 2006. And, if he has viewed constitutional law as virtually a blank check for judges in 1977, it's perhaps kind of understandable why he'd want to keep it that way in 2006.
9.8.2006 8:01am
ATK:

Notice that he implicitly slanders a thousand generations of husbands as compelling their wives to bear unwanted pregnancies


From which penumbra of the quoted text does this absurd observation emanate?
9.8.2006 8:34am
Andrew Hyman (mail) (www):
"For the constitutional right of procreation can hardly be fundamental if one is compelled to exercise it."
9.8.2006 8:41am
ATK:

"For the constitutional right of procreation can hardly be fundamental if one is compelled to exercise it."


He certainly couldn't possibly be talking about state compulsion.
9.8.2006 9:05am
Just:
"In sum, Judge Wilkinson is absolutely right to oppose anti-gay marriage amendments. But the real reasons to do so are that gay marriage is right and just ..."

Personally, I think you're correct on this count, Ilya. But as real life shows us, it's just not that simple to pass off what we accept as "correct" to others, and label opposing their views as "incorrect".

I'm hoping for more courageous judges, who don't act like legislatures in considering, poll-like, whether the public is ready for the outcome of their legal decisions. When we have a solid, educated core of judges like that, unafraid of expressing diverse beliefs within legal grounds, DOMA will be found unconstitutional and same-sex unions will be legally recognized under whatever name as denying them violates the Equal Protection guaranteed all American citizens, regardless of gender.

Under the MA state constitution, those judges were fully acting under the law in deciding Goodrich. That they are criticized as being activist, or ahead of the times, shows a dangerous trend of the judicial branch morphing into the legislative. Wisdom without courage or fight won't get us far.
9.8.2006 9:12am
Andrew Hyman (mail) (www):
"For the constitutional right of procreation can hardly be fundamental if one is compelled to exercise it."


ATK, procreation has always been and always will be a substantially voluntary act, except in cases of rape. For millennia, abortion was not a safe option for most women, either because of medical risk, or because of legal sanction; in such cases, it rarely could be said that a woman was being compelled to do anything, unless she had been raped. By analogy, the government is not "compelling" people to drive their cars, merely by setting a minumum highway speed.
9.8.2006 9:31am
billb:
Andrew: Your response to ATK is fine and all, but that doesn't address his initial riposte. Just because you don't buy the lack-off-access-to-aborition-is-compulsion argument doesn't mean that Wilkinson meant that husbands were the ones doing the compelling.
9.8.2006 9:49am
Andrew Hyman (mail) (www):
Bill, I didn't mean to steer this whole discussion off the topic of gay marriage amendments, so I'll be brief. For millennia, abortion was often not an option due to the medical risks. Thus, if a woman had no "choice" in the matter, then that would seem to leave only one person who made any "choice."

Moreover, consider a case where a woman does seek an abortion (be it medically safe or unsafe) and the husband objects, or tries to defend the unborn child. I still don't see that as a case of "compulsion" unless the womon was raped. The fact is that most husbands do (or at least did) have a desire to protect their children from being ripped apart, especially during later stages of pregnancy.

I am so tired of love for children (i.e. children who have all organs formed and operating) being mischaracterized as a desire to compel or otherwise enslave women. Likewise, the desire for children to preferably grow up in a family having a mom and dad is also being characterized as some kind of oppressive bias against gay couples. Detect a pattern?
9.8.2006 10:05am
OrinKerr:
Nowhere does he qualify these statements by suggesting that they hold true only if other things are equal. Wilkinson is a sophisticated thinker and a good writer. If he had meant to make only an "other things equal" argument, I think he would have said so. Moreover, as I noted in the post, the "shackling" argument is far weaker in the case of state constitutional amendments than federal ones, because state constitutions are relatively easy to amend again in the future.

I therefore stand by my claim that Wilkinson's argument is incorrect. Your reinterpretation of it is far more compelling as a general principle, but at the cost of undermining the case against the anti-gay marriage amendments. If the argument only applies to the extent that all other things are equal, it will be unpersuasive to the vast majority of supporters of these amendments, who surely believe that "other things" are emphatically not equal in this case.


I suppose we're just going in circles by this point, Ilya, but I still don't get the basis of your criticism. Wilkinson may be sophisticated, but he was writing a very short op-ed, not a law review article or a treatise. And your second argument above seems inconsistent with your initial position, which which was that your criticism is all about whether the argument is "correct or not" and not whether it will happen to persuade the audience.
9.8.2006 10:20am
liberty (mail) (www):
>Yet this restriction of a "right" was surely justified. Perhaps Wilkinson meant to say that constitutions should only avoid restricting those rights that are desirable and just. "Bad" rights are fair game.

True but very vague. I would propose that the way to determine whether a right is "good" or "bad" and whether it should be enumerated in the constitution is whether it is one of those inalienable rights described in the declaration. If not, then it doesn't belong in the constitution unless its about the structure of government, separation of powers, etc.

The "right" to own slaves was never a right that anyone could be said to truly posess - it was always a wrong against those enslaved, because their right to liberty was being destroyed.

The "right" to gay marriage or to labeling marriage as between "a man and a woman" is also not a right - the right to free contract is a right, as it is part of the right to property (or "pursuit of happiness"). So, as long as nobody's right to life, liberty or property is prevented, destroyed or abridged by the exercize of this freedom of contract, then this right should not be altered in the constitution with a marriage amendment.
9.8.2006 10:34am
Ken Arromdee:
And your second argument above seems inconsistent with your initial position, which which was that your criticism is all about whether the argument is "correct or not" and not whether it will happen to persuade the audience.

I don't think "persuade" here means the same thing it meant initially. Here, "not persuaded" seems to mean "the opponents are unlikely to accept a logically valid argument because it depends on premises they might not accept". This isn't the same thing as persuasion in the sense of being convinced regardless of the validity of the argument.
9.8.2006 10:38am
liberty (mail) (www):
"Moreover, it's not clear to me why constitutions should only deal with institutional structure and basic civil rights"

Because - and you can look to Public Choice / Constitutional Economics for for theory in this area - the correct role a constitution is to set up the foundations for a society, just the basic rules by which markets and government interactions are limited.

The structure of government is defined so that those in government know the rules of the game by which they must play; and the basic rights of the people are enumerated so that those in government know the arena which they are allowed to regulate, and that which they are prevented from meddling in and so that they can pass laws consistent with these rights.

Then legislators can pass whatever kind of laws the people want consistent with these rights.

This is obviously a simplification and an ideal to strive for - and there will be boundary cases. But we should strive for this ideal because it is the correct way to set up the division of rulemaking. The basic structure of society is the structure of government plus the basic rights of all persons which are closely based on the inalienable rights of man, which guide the lawmakers, and are in the constitution. Everything else is left to the legislators. The courts need only determine whether a given law is constitutional and whether lower courts correctly decided.
9.8.2006 10:49am
Josh Jasper:
What this analysis is missing is that some (I don't have an exact figure) of these constitutional ammendments prohibit domestic partnership laws, and even basic legal contracts designed to afford some (not all) of the legal protections granted by marriage.

To say they're just there to prohibit same sex marriage is oversimplifying the matter. What they're designed to do is to prohibit any form of civil rights to same sex partnership that goes beyond what individuals have for any other random person off the street.

Further, they're frequently lnked to bills prohibiting second partner adoption for the children of one half of a same sex couple.

The fact is, much of America shares the view that prohibition of any of the rights I mentioned above is just a good start. Given the time and oportunity, they'd overturn Lawrence V. Texas, not becauae it was "judicial activism" but becauise they really want to punish gay people.
9.8.2006 11:06am
liberty (mail) (www):
"From fairly early in the history of the Republic, as I understand it, state constitutions have addressed questions that the Framers of the federal constitution would have never thought worth addressing."

This however, is a good point. I don't know what I think of this use of state constitutions to protect pregnant pigs and define parking rules. But it does sort of invalidate the argument that marriage cannot be touched by state constitutions - unless the argument also attacks the state's limitation of pearls on the pig.
9.8.2006 11:06am
liberty (mail) (www):
Josh Jasper,

Well then the argument is much simpler. Any such constitutional amendment would violate the constitutional rights of those couples (right to contract as a property right and even right of liberty) and are themselves unconstitutional and should be struck down on that ground.
9.8.2006 11:08am
Medis:
As an aside, I think it is quite likely that state constitutions frequently do not live up to Judge Wilkinson's model in many other respects, but I would think he could just say that those were other things that didn't belong in their constitutions.

Anyway, I was intrigued by this statement:

"If ordinary political processes are highly likely to get an important issue that doesn't fall into one of these two categories wrong, I don't see why it would be wrong to use a constitutional amendment to prevent that from happening."

This is why I think we need a theory of constitutions in order to address these issues. Presumably, there is some reason why we draw a distinction between laws in constitutions and other laws (which includes the fact that laws in constitutions are supreme). And the underlying reason for this distinction might supply the answer as to why we should not seek to deal with a matter through our constitution even if we happen not to like the result that occurred through ordinary law-making.

As I see it, Ilya is basically assmuing that the only real difference between laws in constitutions and other laws is the process by which laws in constitutions are made. Perhaps that procedural theory can explain everything we think about constitutions, including why they are supreme law, but I don't think that is obvious. And certainly, Ilya's theory of constitutions-defined-by-procedure doesn't strike me as more obvious than Judge Wilkinson's theory that constitutions are defined by subject matter--that they are properly about the fundamental structure of government and basic civil rights.

So, as I see it, Ilya is effectively assuming that his constitutions-defined-by-procedures theory is right and Judge Wilkinson's constitutions-defined-by-subject-matter theory is wrong when evaluating Judge Wilkinson's argument. Accordingly, I think Ilya has to do more than announce his disagreement with Judge Wilkinson in order to present a complete critique--he needs to actually argue for the correctness of his constitutional theory as well.
9.8.2006 11:43am
Medis:
Roger,

It seems to me you still haven't addressed Judge Wilkinson's argument that by passing constitutional provisions regarding marriage, what you are actually doing is increasing, not decreasing, the courts' role in this area.

To put the point another way, if you think the appropriate remedy for a court which derives a right to gay marriage from the relevant constitution is to change that constitution so that it includes a definition of marriage which excludes gay marriages, then it seems to me you aren't actually addressing the role that courts are playing in defining marriage. Rather, you are simply changing the nature of the source material the courts are using, and you have in fact enshrined the very notion that courts will be playing this role in setting marital policy.

To put it more bluntly, it seems odd to say, "We don't want the courts using our constitution to set marital policy in this state, so what we are going to do is put something about marriage in our constitution!"
9.8.2006 11:57am
George Talbot (mail):
Godwin's Law Violation in the article. You immediately lose the argument. ;^)
9.8.2006 11:58am
Laurin Manning (mail) (www):
Thanks for the link, Ilya.


I don't think that a proposed constitutional amendment should be rejected merely because constitutions shouldn't "enact public policies." To the contrary, one of the main reasons for having a Constitution in the first place is to "enact" certain "public policies" in a way that makes it very difficult for government officials to change. The First Amendment certainly enacts a public policy on freedom of speech and religion; the Fifth Amendment Takings Clause enacts a policy on the protection of private property; the Fourth, Sixth and Seventh Amendments enact policies on various issues in criminal and civil procedure, and so on.


The point Judge Wilkinson is making when he writes that constitutions shouldn't "enact public policies" is with respect to prescriptivism in legislating social policies. The amendments you cite are entirely different: they're safeguards on foundational principles -- things folks at the time of the founding thought were so integral to the identity of this country that they demanded they be protected by the Constitution. These things made the top 10 back then and have been a priority to protect ever since because most of them derive from natural law.

Constitutional amendments like the ones Judge Wilkinson is writing about are hardly of this ilk. (Obviously I'm not suggesting that all amendments are derivitive of natural law, but in my opinion, the ones you cited are. Most others are purely procedural.)

Enactments of manmade prescriptivist social policies shouldn't be subject to the same sort of deference or degree of protection as the bedrock "unalienable rights." A perfect example of this is the 18th Amendment. It was a liberty-infringing, prescriptive social policy that reflected the beliefs of much of the country at the time, and it took the country over 15 years to undo it. (And I, for one, am thankful they managed to get it undone!)
9.8.2006 12:07pm
Antares79:

The basic idea would be to separate out decisions involving the fundamental structure of government and the most basic civil rights of the people from those decisions that deal with other sorts of particular problems, placing the former decisions in the constitutional category and the latter in the legislative category.


Isn't is easier to distinguish proper statutory and constitutional subject matter based on the proscription of specific personal actions? Constitutions mostly set restrictions on government action or define its structure; it is mostly statutes that seek to prevent behaviors and actions by individuals through punishment.

I can think of a couple exceptions off hand - the 13th and 18th Amendments. But even the 13th serves to prevent the wholesale subjugation of one person's actions to another, and the 18th was repealed after such regulation of personal behavior proved unpopular and unfeasible.

I just think Ilya may be right in that the morality/structure distinction is not useful - as he says, several constitutional provisions could be considered to deal with some type of morality (1st amend, 8th amend, etc.). But I think he would be harder pressed to argue against the paucity of consitutional provisions prohibiting specific actions by citizens.
9.8.2006 12:15pm
Randy R. (mail):
Toby: People are rushing to enshrine their current opinions in the constitution because they have no faith that the modern judge will be a fair umpire, rather than a legislator substituting his own preferences for the law. Experience has shown that it does not take a large percentage of activist judges to over turn all common understanding of law and precedent."

This is patently wrong. The fact is that no judge in Virginia has yet judged on the issue of gay marriage. Therefore, an amendment to deal with a problem that has not even arisen yet is not only dangerous, but silly as well. The constitutional amendment process was never intended to deal with potential issues, but with real ones. The fact is that most judges have NOT recognized gay marriage.

I can understand a proposed constitutinoal amendment if the Virginia Supreme Court ruled in favor of gay marriage. Until then, however, amending the constitutional trivializes it and the judiciary, and that, in my opinion, sets a dangerous precendent. Why stop there? Why not amend it to prevent polygamy? Or to prevent any legal rights for Martians?
9.8.2006 12:31pm
Ponderous Ponderer (mail):
I imagine that opponents of gay marriage realize that if they wait for a judicial ruling they will probably be too late. Dissolving the marriages of perhaps thousands of people AFTER they occur seems meanspirited, and is far more politically difficult than preventing them from occurring in the first place. Look at Massachusetts: ex ante the majority did not support gay marriage, but because it takes years to amend the state constitution the people had time to notice that no immediate disaster transpired and to become more supportive.

I support gay marriage, but it's not foolish to recognize that legislation can have a powerful inertia in general. It would have been far easier to stop the Bush prescription drug benefit before it was passed than to take it away now. If Social Security hadn't had time to suppress private savings and create a generation of elderly people profoundly dependent on it, we would have (relatively!) little difficulty privatizing it. Etc, etc, etc...
9.8.2006 12:50pm
Mark Field (mail):
If the idea is to define what should be in the constitution and what should not, I think one would have to start from the beginning. The reasoning would go something like this:

1. The purpose of the Constitution is to establish a republican form of government.

2. The core features of a republican form of government are:

a. Sovereignty in the people;
b. Rule by the majority.

3. In order to make sure the republic lasts, instead of dissolving like previous republics, the following rules have to be insulated from majoritarian change:

etc.

It's hard to see how a "no gay marriage" amendment would fit in here. OTOH, one could start with different axioms and reach different results.
9.8.2006 1:12pm
billb:
Andrew: I don't necessarily disagree with your points about compulsion, but I don't necessarily agree with them either, mind you. I just wanted to point out that your conclusion that Wilkinson must have been talking about husband-compulsion rather than government-compulsion was unwarranted. That is, you initially were criticizing Wilikinson for a view that most likely doesn't hold.

Clearly, you're free to critize people, as you do in your most recent response to me, for subscribing to the lack-of-access-is-compulsion position, but it's not fair to critize someone for holding a view that they probably don't actually have.
9.8.2006 1:20pm
Medis:
Antares79,

It seems to me you are largely drawing the same distinction as Judge Wilkinson in slightly different terms. He wrote: "the Framers meant our Constitution to establish a structure of government and to provide individuals certain inalienable rights against the state." You wrote: "Constitutions mostly set restrictions on government action or define its structure." These strike me as pretty much the same basic idea.

Incidentally, I agree that all of these provisions reflect normative judgments of some kind, but I didn't see Judge Wilkinson arguing otherwise. And part of my point is that merely noting out that all of these things reflect normative judgments does not show that they should all be dealt with through constitutions instead of ordinary legislation. Again, we still need a theory as to why certain normative judgments and not others belong in a constitution, and that is what I think you and Judge Wilkinson are proposing.
9.8.2006 1:27pm
Mark P. (mail):
Mark Field,

Simply change the words "insulated from majoritarian change" in your third axiom to "enshrined in this constitution to ensure that they are not changed by an insulated judiciary," and I think you're getting closer to the concerns of the amendments' sponsors. (With which I disagree, by the way.)

The Virginia amendment's sponsors aren't nuts to think that insulated judiciaries will use general, non-specific language in a constitution to establish their own specific public-policy preference into law, because courts in Mass. and elsewhere have already done this specifically on this issue (and in many other issues). Again, I disagree with the amendment's wisdom, but 1) its sponsors have a legitimate political concern, and 2) their remedy for their concern is politically legitimate.

I agree with Ilya; the judge didn't help his own cause.

Markp
9.8.2006 1:33pm
markm (mail):
If the opponents of gay marriage were merely worried about activist judges, the only state constitutional amendment they would be seeking would be one to expressly place that power in the hands of the legislature. That preserves democracy. Proponents of constitutional amendments banning gay marriage are seeking to limit democracy in the future, when their present majority may evaporate.

Of course, the exact same thing is true of the Bill of Rights. The real question is when frustrating democracy becomes a good thing.
9.8.2006 1:39pm
Andrew Hyman (mail) (www):
Bill: Wilkinson wrote, "For the constitutional right of procreation can hardly be fundamental if one is compelled to exercise it." Obviously, Wilkinson was arguing that any action to prevent a woman's lifestyle choice about abortion amounts to compulsory procreation; he thus impliedly condemned action by a husband or boyfriend just as much as he condemned action by a state. If a husband takes identical action to action by a state, how can only one of those actions amount to "compulsory procreation"?

Moreover, the judicially-created abortion regime that Wilkinson supported has restrained husbands and boyfriends every bit as much as it has restrained legislatures. For example, see, Adam Liptak, Ex-Boyfriend Loses Bid to Halt an Abortion, N.Y. TIMES, Aug. 6, 2002 at A10. Nowadays, a husband or boyfriend who tries to protect his unborn child is now subject to criminal punishment, on an equal basis with any other criminal. SCOTUS has also held that a husband or boyfriend may not be afforded any legal right to even know that his child has been (or will be) aborted, which not only prevents "compulsion" by husbands, but also effectively prevents law-abiding husbands from leaving bad marriages.
9.8.2006 2:11pm
Mark Field (mail):

Simply change the words "insulated from majoritarian change" in your third axiom to "enshrined in this constitution to ensure that they are not changed by an insulated judiciary," and I think you're getting closer to the concerns of the amendments' sponsors.


I think your psychology is right, but I have to agree with others that these (assumed) expectations are likely to be disappointed. Putting a clause into the Constitution does NOT insulate it from judicial review, it insulates it from majority rule. The judges will remain free to interpret, the people (and the legislature) will not.


The real question is when frustrating democracy becomes a good thing.


Exactly. IMO, the best reasons are those which serve as "meta-rules" for democracy itself, i.e., those which enable democracy to survive its flaws and perpetuate itself. We need, in short, "a republican remedy for the diseases most incident to republican government."
9.8.2006 2:13pm
Medis:
markm,

Indeed, and various people have tried to propose amendments that would simply have the effect of reserving the issue for state legislatures, but they have not been able to draw enough support from the two major camps (those not wanting any amendment, and those wanting to actually write a marital policy into the relevant constitution).

And again, I think Judge Wilkinson is exactly right about this: if you don't want judges making decisions about marital policy, you shouldn't put a statement of marital policy into the relevant constitution.
9.8.2006 2:46pm
EllisWyatt:
The debate over gay marriage has brought to light a number of ongoing issues with our courts and constitutions. Most, if not all, state constitutions are too granular. That is, they get down to specific policy provisions rather than simply set up the framework for a government.

When you think about it, you want the institutions of government to be stable. The only reason to change any of the institutions of government is when those institutions no longer function very well. That's why constitutions are considerably more difficult to change than ordinary legislation. That's also why constitutions should be limited to establishing the framework for government.

Policies, on the other hand, need to be more responsive to the will of the people. Governments need to have the ability to quickly adapt their policies to changing times. That's why policy is best left to the legislative branch of government.

I support gay marriage, but I stand with the conservative position of deciding the issue in the legislatures rather than the courts. I think that the legal system of the US is in dire need of reform from top to bottom. Specifically, we need to amend the US Constitution to provide limits on judicial review. I would also go one step further and institute a mandatory retirement age for judges, since they are not directly elected by the people. We can debate what exactly the appropriate limits are for judicial review, but I think it is clear that limits need to be established.
9.8.2006 3:21pm
Medis:
Ellis,

Keep in mind, though, that many state judges are elected.
9.8.2006 3:33pm
james (mail):
"if you don't want judges making decisions about marital policy, you shouldn't put a statement of marital policy into the relevant constitution."

This simply is not true. People sue over the constitutionality of laws passed by the legislatures. Judges rule on these cases.
9.8.2006 3:59pm
NCCU4LE (mail):
Andrew Hyman:

SCOTUS has also held that a husband or boyfriend may not be afforded any legal right to even know that his child has been (or will be) aborted, which not only prevents "compulsion" by husbands, but also effectively prevents law-abiding husbands from leaving bad marriages.


I don't follow this. Why would their non-involvement in the decision to abort affect their ability to leave a bad marriage? If the marriage is bad, it is surely bad regardless of the mother's pregnancy status. Furthermore, how does this relate to the topic of the original post?
9.8.2006 4:05pm
Andrew Hyman (mail) (www):
NCCU4LE, my apologies for departing from the main topic of the post. I quoted a law review article by Wilkinson that mentioned both topics, and then a discussion ensued. So, again, I'll be brief. A law-abiding husband who doesn't know that his wife has aborted one or more of their children is much less likely to leave the marriage than if he knew. That's true even if it's an unhappy marriage. Obviously, a major reason why a wife would not inform a husband about a past abortion is because he'd be upset about it.
9.8.2006 4:14pm
Medis:
james,

I'm not sure I understand. Your statements ("People sue over the constitutionality of laws passed by the legislatures. Judges rule on these cases.") seem to support the idea that if you put statements of marital policy into a constitution, judges will end up making decisions about marital policy.

Indeed, as markm and I were discussing, if you want to make sure that judges stay out of this area, what you would want is something like a constitutional amendment specifically stating that it was a matter for the legislature to decide, or at least stating that the constitution was silent on the issue.
9.8.2006 4:26pm
Roger Schlafly (www):
Medis wrote:
[Passing constitutional provisions is] simply changing the nature of the source material the courts are using ...
Yes. That is the normal democratic process. The people pass laws, and the courts use the given source material to resolve disputes.
it seems odd to say, "We don't want the courts using our constitution to set marital policy in this state, so what we are going to do is put something about marriage in our constitution!"
No, it is really saying, "We don't like the courts changing marital policy in this state, so we are going to use the normal democratic process to amend and clarify whatever law the courts are trying to use to change policy."
9.8.2006 4:26pm
Thorley Winston (mail) (www):
It seems to me you still haven't addressed Judge Wilkinson's argument that by passing constitutional provisions regarding marriage, what you are actually doing is increasing, not decreasing, the courts' role in this area.


I'm not sure I agree with this argument (or much of what I've read of Judge Wilkinson's argument). It seems to me that both statutes and constitutional amendments are litigated in the courts but a statute can be struck down if a court decides that it runs afoul of what's in the constitution (or what the court reads into the constitution, which is one of the concerns of FMA supporters). The benefit of a constitutional amendment is that by its definition it's constitutional and therefore eliminates (or substantially reduces) the ability of a court to strike it down.
9.8.2006 4:31pm
Medis:
Roger,

You seem to be treating all laws, whether in constitutions or statutes, as the same. But when it comes to the role of the courts, that is not correct. And the reason that isn't correct is that putting a law into a constitution empowers the courts to invalidate statutes which they deem inconsistent with that provision of the constitution.

To put the same point another way, you seem to have just two players in your model: the people and the courts. But there is at least a third player in state governments: the legislatures. And again, putting a policy into the constitution generally grants power to the courts at the expense of the legislature.

So, from the people's perspective, this is really a question of which of their representatives gets the most power. If the people want the courts to have the ultimate power on an issue, they should put the relevant law in their constitution. If the people instead want the legislature to have the ultimate power on an issue, they should keep the relevant law outside of the constitution.

So, putting a law like this into the constitution is in effect a choice to give the ultimate power to the courts. And yet that is the exact opposite of what some people claim to want.
9.8.2006 4:36pm
Medis:
Thorley,

But given your own analysis, once the provision is in the constitution, it authorizes the courts to interpret that provision and strike down legislation it deems contrary.

Again, if you genuinely want to stop courts from playing this role, what you should want is something like an amendment that guarantees the constitution's silence on the issue, or specifically delegates the decision to the legislature. But if you instead use the constitution to actually specify a marital policy, such an amendment permanently puts the courts in a supervisory role over the legislature.
9.8.2006 4:42pm
Roger Schlafly (www):
Medis wrote:
So, putting a law like this into the constitution is in effect a choice to give the ultimate power to the courts.
You have given an argument against constitutional law, which perhaps we can debate sometime if you wish. My point is that if the courts suddenly change our understanding of the constitution, as has happened in Hawaii, Alaska, Mass., and Vermont on this subject and may happen in other states as well, then the normal democratic process requires amending the state constitution to restore it to be a reflection of the popular will of the people.

Wilkinson's argument is really an argument in favor of state constitutional amendments.
9.8.2006 4:56pm
Mark Field (mail):

You have given an argument against constitutional law, which perhaps we can debate sometime if you wish.


I don't follow this.


the normal democratic process requires amending the state constitution to restore it to be a reflection of the popular will of the people.


"Normal" in this case meaning "short-term". In the long run, putting something into a constitution is UNdemocratic. It restricts majority rule from that point forward and, as Medis keeps pointing out, shifts the arena of debate from the legislature -- the "normal" democratic branch -- to the courts.
9.8.2006 5:14pm
Medis:
Roger,

I simply don't understand why you are ignoring the obvious alternatives to putting a statement of marital policy into the relevant constitution. Again, if you really want to limit the role of the courts, the obvious thing to do is definitively REMOVE marital policy from the relevant constitution, or at least to specifically allocate the power to set marital policy to the legislature. And you could do that with a constitutional amendment, but rather than being a statement of a constitutionalized marital policy, it would be a statement of constitutional delegation and silence on marital policy.

So let's put this on concrete terms. Which would you rather see added to a state constitution:

(1) "Marriage in this state is defined to include only unions between a man and a woman"; or

(2) "The task of defining marriage in this state is expressly delegated to the legislature, and this constitution is otherwise silent on the definition of marriage."

And frankly, I think it is quite clear that anyone choosing variations on (1) over variations on (2) is not really concerned about the relative power of the courts, but rather just wants to get their way on the policy issue.
9.8.2006 5:16pm
Medis:
Oops--I meant "excusively delegated" not "expressly delegated".
9.8.2006 5:18pm
Roger Schlafly (www):
Mark, if you say that putting something into a constitution is UNdemocratic, then you are giving an argument against constitutional law.

Medis, I guess that you are now conceding the point that the normal democratic process requires amending the state constitution. Your only quibble is about how such an amendment might be worded.

Among those who support state marriage amendments, many of them are indeed more directly concerned about the merits of the policy issue. Making a statement about the power of the courts is secondary. So what? People often have lots of reasons for supporting a law or amendment.
9.8.2006 6:07pm
Medis:
Roger,

I think I have been consistent about these matters in the comments above. Again, I think Judge Wilkinson was using "normal democratic process" to refer to legislation, and so whether or not a constitutional amendment would be warranted, it would not be part of the "normal" democratic process.

Incidentally, I would suggest the actual substance of what you would want to put in your constitution is not exactly a "quibble". Again, I think there is quite a difference between an amendment that would definitively REMOVE marital policy from the relevant constitution, and an amendment that would definitively ENSHRINE marital policy into the relevant constitution.

And the "so what" is that depending on which sort of amendment you are talking about, the interests you mention ("the merits of the policy issue" versus "the power of the courts") may not be complementary, but actually contradictory. Again, as I think Judge Wilkinson was arguing, insofar as you actually try to enshrine marital policy into the relevant constitution, you are not just treating the power of the courts as a "secondary" concern, but are actually overriding that concern in the name of getting the result you want on the merits.

Circling back to Judge Wilkinson's point, I think one could argue that an amendment which exclusively delegated marital policy to the legislature without attempting to set specific policies would be a specific version of a structural provision, and therefore perhaps a viable candidate for inclusion in a constitution on his theory. In contrast, an amendment which attempted to address the merits of the issue is not plausibly a structural provision, and moreover it has the de facto effect of increasing the courts' power over the issue.

In short, the "so what" is that if you take anything you are saying about the power of the courts seriously, you should think carefully about what exactly you really should be doing on the constitutional, rather than legislative, level.
9.8.2006 6:32pm
Brett Bellmore:

Again, if you really want to limit the role of the courts, the obvious thing to do is definitively REMOVE marital policy from the relevant constitution


This is an absurd claim. A judge who wants to impose same sex marriage doesn't need any mention of marriage in the constitution he's (miss)construing. All he or she needs as a hook is equal protection, or some general claim that current policy lacks any rational basis.

Obviously these marriage amendments can't stop a judge who's determined to impose same sex marriage come hell or high water. They can, however, serve to render the illegitimacy of such rulings so unambiguous as to allow them to be the basis of impeachment proceedings.
9.8.2006 6:36pm
Medis:
Brett,

You can do the same thing with a negative amendment. In other words, if you amend the constitution to state something like, "The power to define marriage, the rights of marriage, and the right to be married is exclusively delegated to the legislature, and this constitution is otherwise silent on these issues," then a judge who uses some other clause to find a right to same sex marriage would be just as obviously doing something "illegitimate".

By the way, I'm just going to note once again that many state judges are elected.
9.8.2006 6:43pm
Master Shake:

Andrew Hyman : "I certainly don't want to be held to everything I wrote and thought in 1977."
Andrew, if I were you, I wouldn't want to be held to what I wrote last week, let alone in 1977.

Folks, don't try to get a coherent argument out of him. You're not going to. See here, it's a hoot:

What is science
9.8.2006 6:53pm
Brett Bellmore:
I'll grant you that the case for amending constitutions is quite a bit stronger than the case for the specific wording of those amendments. At least from a disinterested process standpoint, rather than the viewpoint of a partisan in the contraversy... Obviously, opponents of same-sex marriage, having been forced to the expedient of seeking constitutional amendments, thought that they might as well constitutionalize their own policy preferences, rather than merely making it more difficult for judges to impose their's.

But the case for *an* amendment, rather than the specific amendments in question, is quite a bit stronger than the judge want's to admit. Doubtless because the case is based on a fear of judicial bad faith, and what judge wants to admit that the public's fear of judicial corruption is rationally based?
9.8.2006 7:07pm
logicnazi (mail) (www):
Well yes, obviously the reason to prevent constitutional ammendments restricing gay marriage is that gay marriage is a just right. However, I think you are being a bit hard on the judge and crediting him with unreasonable views when their are reasonable ones he could easily be interpreted as meaning.

First as to the question of restricting rights. If we take right in pragmatic legal sense, meaning a defined class of actions that the law might protect your ability to engage in, your right that a rule banning right revoking clauses in the constitution is non-sensical. However, there is a different more idealistic notion of right that the judge surely meant to invoke. That is the use of right to mean negative right or freedom from interferance.

This usage is actually the normal one. Even in areas without any legal system we are inclined to speak of people's right to be free from rape but don't talk about people's right to rape. We even speak of people's right to be insulting and rude so we aren't merely using right as a codeword for something that is good to do. The slavery case can easily be handled by requiring that a right not give one the power to abridge another's freedom without cause or some such thing. I agree that there is a reasonable case to be made that the meaning of right in this context is merely 'those things which ought not be abridged.' However, I don't think you have demonstrated that there isn't a coherent notion here that the judge could mean short of just saying that gay marriage isn't so bad.

Even if one agrees that all this right talk is just coded talk for good and bad it doesn't follow that anti-gay marriage laws are bad because gay marriage is good. I would take the judges statement to be a roundabout way to say we shouldn't be confident that anti-gay marriage laws are completely justified.

Ultimately it must be the case that any argument against enshrining anti-gay marriage rules in constitutions must also reduce our confidence that it is just to have anti gay marriage rules (or set some kind of bad precedent). If we were 100% confident that these sorts of laws were preferable it immediatly follows that we ought to put them in the constitution. However, people aren't psychologically set up to admit that their cherished beliefs aren't dead certain so we must rely on other meta-rules like 'don't restrict rights in the constitution' to avoid enshrining rules we shouldn't be so confident of.

I see this as very similar to talk about religious freedom. Obviously if you are 100% certain that your religion is correct religious tolerance is totally silly (unless directly required by your faith). In reality freedom of religion is a roundabout way of saying we aren't sure that are religion is right so we can't take the risk of enshrining it in the government but we can't just say this directly because religious people aren't willing to admit that they have incomplete faith.
9.8.2006 7:09pm
logicnazi (mail) (www):
Or more shortly I think properly translated here is what the judge is saying:

Even though I may see the attraction (or support it?) in anti gay marriage laws I notice that they bear a certain similarity to laws we have made in the past that turned out to be wrong. Since history has been a progression of laws that restricted what other people could do in their private lives that we later realized were harmful or in error we should realize that this might be the case with anti-gay marriage laws as well. This could still be true even if gay marriage is bad, the same way most christians think being a non-christian is bad yet agree that ancient laws against being non-christian were bad.

Therefore since we might be wrong about this rule it would be unjustified to tie the hands of future populations who have more information and have had more time to consider the issue. If it is ever not justified to put a rule in the constitution that you believe is right a case such as this where one has good historical evidence similar rules turned out to be wrong and a large segment of the population opposes it must surely be it.
9.8.2006 7:17pm
Just:
"A judge who wants to impose same sex marriage doesn't need any mention of marriage in the constitution he's (miss)construing. All he or she needs as a hook is equal protection"

"Obviously, opponents of same-sex marriage, having been forced to the expedient of seeking constitutional amendments, thought that they might as well constitutionalize their own policy preferences, rather than merely making it more difficult for judges to impose their's."

Don't be afraid, Brett.
Get married quick.
So long as you have a man-woman union, no one will be able to force a same-sex marraige on you, or impose their views on yours.
9.8.2006 9:02pm
Mark Field (mail):

Mark, if you say that putting something into a constitution is UNdemocratic, then you are giving an argument against constitutional law.


I don't think so. I think I'm just pointing out the truism that every written constitution per se restricts democracy. That's inevitable once you privilege certain issues from majority rule.
9.8.2006 9:10pm
Andrew Hyman (mail) (www):
Master Shake, it's revealing that you don't actually quote anything that I said to substantiate your charge of incoherence. In any event, you and another commenter (Colin) were very rude in the thread you link to. Colin has since apologized by email. Without mentioning his full name or place of employment, I will quote his emailed apology as a model for you to follow:

I apologize. I get a little heated when it comes to science/pseudoscience, for no good reason; everyone has their weird little passions. I did let this one get under my collar, and was very rude to you without cause. I am sorry....[Y]ou're right to criticize me for being insulting. I was, and without good cause....I apologize for my combative tone.
9.8.2006 11:50pm
Toby:
Randy: This is patently wrong. The fact is that no judge in Virginia has yet judged on the issue of gay marriage. Therefore, an amendment to deal with a problem that has not even arisen yet is not only dangerous, but silly as well. The constitutional amendment process was never intended to deal with potential issues, but with real ones. The fact is that most judges have NOT recognized gay marriage.

The argument was soley about perceptions.

1) As loopy feelings about crime show, *everything* is now local. If something bad happens in Oregon, folks in Georgia watch their kids more closely. Judges in MA make voters in VA think they are next - and they are not waiting until the judges in VA prove them right. Which was sort of the point. The MA experience has taught them not to wait.

2) In politics, perception *is* reality.

Personally I'd prefer constitutions not be clogged up with this kind of stuff. Personally, I have always found the health care I am forced to buy at work more expensive than what I bought on the streets. Personally, I find it offensive when folks demand I celebrate rather than tolertate the diversity - and tolerance is all I ask for myself.

But the point was, how will this judges argument affect the race. Wil lthey be as convincin to laity as they are to lawyers.

And on tht point, I say no.
9.9.2006 12:07am
Andrew Hyman (mail) (www):
It's worth noting that one of the main arguments against adopting the Bill of Rights in 1789 was that the federal government had not (yet) denied any of those rights. Without taking any position on these present-day marriage amendments, I'll just quote Roger Sherman:

On the whole it is hoped that all the states will consent to make a fair trial of the constitution before they attempt to alter it; experience will best show whether it is deficient or not, on trial it may appear that the alterations that have been proposed are not necessary, or that others not yet thought of may be necessary....


Of course, Sherman's argument lost, because so many people didn't want to wait until it was too late.
9.9.2006 12:39am
Warmongering Lunatic (mail):
If Judge J. Harvie Wilkinson's concern was the enactment of policy in state constitutions, he would not be spending his time objecting to marriage amendments, but be calling for the radical alteration of the constitutions of most states. Many have hundreds of pages, as a class they average over a hundred amendments a piece, and the majority detail all sorts of trivia. Clearly state constitutions are not mere charters of government, but expressions of policy.

Since Judge Wilkinson is not calling for radical constitutional reform on the level of the states, we can safely conclude he doesn't actually care very much about the principle of state constitutions not enacting policy. Instead, he is clearly objecting to a certain proposed policy being placed outside of state judicial review.

I say state judicial review because state constitutions are quite frequently amended or replaced. An enactment in one can, in most cases, be reversed quite easily as the opinion of the citizenry shifts, meaning there's no democratic defect. For example (data from Wikipedia):

Alabama is on its sixth constiution, which has over 770 amendments.
Alaska is still on its first, and has amended it 28 times in 47 years.
California's current and second constitution has 425 amendments.
Connecticut adopted a new constiution in 1965, and had already amended it 30 times.
Georgia is on its tenth constitutions, enacted in 1983.
Maryland's fourth and current constitution has been amended "almost 200" times.
Massachusetts -- one contitution, dating from 1780, amended 120 times.
Minnesota -- one constitution, dating from 1858, amended 120 times.
Montana -- two consitiutions, latest from 1972.
New Jersey -- three constiutions, latest from 1947.
North Carolian -- three constitutions, latest from 1971.
Ohio -- four constiutions, latest from 1951
Texas -- five constitutions, latest from 1870, amended "more than 400 times".
Virginia -- seven constitutions, latest from 1970.
Wisconsin -- one constitution, from 1848, amended "over 100" times.
9.9.2006 5:19pm
Kelly (mail):
In all the discussion about gay marriage and prohibitions by legislation vs. constitution, we should understand that what is being proposed in Virginia goes far beyond that. In addition to constitutionalizing the current legislative ban on same-sex marriage, the proposed amendment would add the Virginia constitution this sweeping and disturbing vague language:

"This Commonwealth and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage. Nor shall this Commonwealth or its political subdivisions create or recognize another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage."

That is quite a restriction on rights of private contract, not only between same sex partners but between unmarried heterosexual couples and potentially others, such as parents and their children. While many state constitutions are littered with policies du jour that might well be better suited to regular legislation and surely would be at the federal level, the Virginia ballot measure adds a bizzare twist that goes well beyond prohibiting recognition of same-sex marriage. If it passes, judges in Virginia won't be spared the prospect of dealing with gay marriage. Quite the contrary: they'll be obligated to decide just what are the designs, qualities, significances, and effects of marriage. And, by extension, they will have to decided whether same-sex couples are entitled to them.

Whatever its merits and regardless of its drafters' intentions, the Virgina ballot measure is not exactly a judicially conservative approach to the prospect of gay marriage in that state but an open invitation for judges to take up the issue.
9.11.2006 3:07pm