Still Pissed Off About the Hawley-Smoot Tariff

Wednesday, September 08, 2004

More on Louisiana's Gay Marriage Amendment

I originally wanted to comment on the text of the amendment before the panel, but thought I wouldn't have time to do so. That was before I realized the panel is next week, so it turns out I do have time, and I'd like to take advantage of it. But not in this post. I want to start by philosophizing on gay marriage amendments in general.

I'm not particularly excited about an amendment. As you may know, I do not support gay marriage, I think marriage is by definition a union between a man and a woman, and I really, really don't like the idea of activist judges acceding to the gay lobby's desire to force new social norms on Americans who are quite happy with their norms, thank you very much. But for all that, I'm still not super-enthusiastic about an amendment because I regret the necessity to amend the constitution (lower case "c" for states) over something so nit-picky. The amendment process is bulky and slow to respond, and that's by design. It is meant to set forth broad principles, not to react to the latest headlines.

Nevertheless, I support the amendment because I do believe that marriage is the union between a man and a woman, and far more importantly because I don't want activist judges and liberal interest groups overriding basic principles of democracy. Had the gay lobby not been so adamant about insisting upon gay marriage (as was the case in Boston, San Francisco and a few other places) I would have been quite content to leave out the amendment. But at this point, an amendment is the only democratic way of preventing judicial tyranny. It is the only way to uphold the will of the people, rather than forcing the majority to bend to the will of the loud, obnoxious minority.

But I have a better idea for an amendment. I see the real evil here not as gay marriage, so much as the liberal activist judges. Targeting gay marriage only means stopping acticist judges from one specific instance of abuse, rather than cutting to the root of the problem. My amendment would be a much bigger deal, but it would have to be in order to solve the problem, which is a much bigger deal.

As things stand now, the notion of Constitionality is the exclusive province of the judiciary. Because that exclusivity was first established by the judiciary, and the judiciary is not about to willingly give it up, a Constitutional amendment is the only viable means. And that amendment would read something like this:

When in the exercise of judicial review the United States Supreme Court declares a statute to be unconstitutional, that decision may be overridden by a declaration by two thirds of the House of Representatives, two thirds of the Senate, when such declaration is duly ratified by the President. Should the President decline to ratify the declaration, Congress shall have no power to override the will of the President as to that issue.

It is perhaps inelegantly expressed, as I just made it up right now. But the basic purpose is this: we have three branches in our federal government, and all three are governed by the Constitution. Yet one branch excercises unlimited power over the other two because it can declare their acts unconstitutional. I would not shift that decision to another single branch, because that wouldn't solve the problem of concentrated power. But I think that if two branches (the Executive and the Legislative) were to agree on consitutionality, then if the branches really are of equal dignity and power, their combined determination of constitutionality should defeat the Supreme Court. I gave it a super-majority requirement because I recognize the seriousness of the issue of overturning Supreme Court decisions. And I put the last sentence in because Congress shouldn't be able to do the equivalent of a veto override and thus snatch exclusive control from the Supreme Court and the President.

Naturally, any attempt to override a Supreme Court decision would have enormous political repurcussions, but that is exactly the point - the legislative and executive branches are the political branches. They cannot arbitrarily exercise any power if they know they will suffer in the polls for it.