Alternatives for Bush

Posted: Feb 29, 2004 12:00 AM

The president said that a constitutional amendment is not to be taken lightly. He is correct, but misses the opportunity to say that a constitutional amendment is also a step towards the redistribution of power. And that in and of itself is desirable. Wise man Irving Kristol several years ago wrote (in the Wall Street Journal) that he wished to live to see a constitutional amendment enacted whose intention was simply to remind the courts about the division of powers. I made the same point in a book published in 1973.

As things have now gone, the action of one court in one state (Massachusetts) has swamped political discussion. It had been dreamily suggested by equal rightists, in recent years, that marriage should extend beyond conventional relationships. This seemed preposterous and the Defense of Marriage Act was enacted in 1996, during the administration of President Clinton. It was passed by a vote of 342 to 67 in the House and, in the Senate, 85 to 14. Meanwhile 38 states have passed congruent laws ? 38 being, coincidentally, three-quarters of the states, the number required to pass a constitutional amendment.

The Defense of Marriage Act did, granted, have something of the feel of an act that says that a quadruped must have four legs. Yet even though the act seemed merely to be defending that which is clear and obvious ? that marriages are between people of opposite sexes ? the question lingers whether that act would sustain constitutional review. You see, what it does is to say that the full-faith-and-credit clause of the Constitution would not here apply: No state would be required to recognize "marriages" performed in other states in contravention of marital logic. Suppose that, tomorrow, the Supreme Court held that that congressional act was supervened by the constitutional full-faith-and-credit provision and was therefore null and void? There are libertarian-conservatives in the land who enter the following reservation, namely that although President Bush's proposed amendment can be held to be an assertion of popular rights, it is federal in its approach, where there was an alternative means to achieve the same end, which means could be decentralized. They are saying: Let the individual states make their own laws respecting marriage.

A means of devolving popular authority, to be exercised by individual states, could be obtained by removing jurisdiction from the Supreme Court in matters having to do with marriage. Article III, Section 2 gives Congress the necessary authority to do this.
"...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."

The President need not withdraw his proposal for a constitutional amendment. But its passage is, to begin with, problematical because of the creaky machinery of constitutional reformation. Mr. Bush's father couldn't even get through an amendment to forbid flag-burning. It would require time and long periods of advocacy. But the president could get quick action on a measure to limit jurisdiction. The heavy majorities that voted in favor of the Defense of Marriage Act tell us that congressional sentiment is strong on the subject. The law would be saying, in effect: Pending a constitutional amendment, the Court is not to rule on any matter that has to do with state laws governing marriage.

There would be critics, of course. The bellwether of unreason and extremity of expression, Senator Kennedy, would raise his baton and attempt to organize protest. Immediately after Mr. Bush's proposal for a constitutional amendment, Mr. Kennedy gave his deliberate view of the question: "By endorsing the shameful effort to write discrimination back into the Constitution, President Bush has betrayed his campaign promise to be a uniter and not a divider." Kennedy is saying that to affirm the traditional understanding of what constitutes a marriage is to underwrite discrimination.

It is dizzying, the senator's perspective. He sits in the upper house because the majority of the voters in Massachusetts sent him there. The majority of the voters in Massachusetts oppose same-sex marriage. Mr. Bush's proposal would have the effect of validating the authority of the voters in Massachusetts not only when they vote on whom to send to Congress, but when they vote on institutional arrangements in the state.

Some are saying that Mr. Bush is clearly engaged in politics. Who is not, in an election year? They speak of the need to address issues. He is certainly doing that, addressing an issue, and in language elevatingly principled and impersonal. Senator Kerry, who says he opposes same-sex marriage but is against a constitutional amendment, is repeating his formula for having it both ways, as in: personally opposing abortion and supporting its expediting in every conceivable situation.

Yes, Bush is talking politics, which is what one is supposed to do when national issues arise.