I’m driving back from court this morning and listening to talk radio when an odd commercial pops on the air. It’s a conservative lobbying group urging voters to call their senators and congressmen to vote against the proposed Constitutional Amendment that would limit the definition of marriage to one man and one woman. No, the commercial is not advertised by a gay-conservative group. Instead, they’re urging that the Constitiutional Amendment process isn’t meant to be abused, and that this amendment needs to be stopped as quickly as possible. That we still need to fight for traditional marriage, just not here.
I’m still baffled. The merits of the proposed amendment aside (because, as we all know, it’s a hot topic on these boards with the vocal majority of Dopers opposed to it)–I’m astonished that there’s a conservative group out there opposing it on the grounds that it’s an abuse of the amendment process. My understanding was–and somebody retrain me in 3 years’ worth of law school if I’m wrong–that the amendment process exists to consistently better finesse the legal system. I don’t know a lot about the history of why amendments have been passed; I do know that conservative legal thinkers are fed up with judges exceeding their bounds, particularly with the notion of “fundamental due process,” and that the Amendment process is an apparently invincible method of circumventing the judiciary and SCOTUS in particular. An Amendment is the rock to SCOTUS’ scissors, and only a subsequent and contrary Amendment can defeat it.
Plus, the Amendment process would, in a conservative’s mind, arguably have a closer relationship to the democratic process than a judicial decision, since we elect Congress based on how they will vote or have voted, whereas the judiciary is one step removed and has less accountability than elected officials.
So–where’s the freakin’ problem with the Amendment process? Again, let’s ignore the particular issue–I suspect this group could just as easily be complaining about constitutional amendments to extend personhood to fetuses or term limits on elected officials. The only thing I can think of is that an Amendment might chip away at states’ rights, but the commercial really didn’t make that clear. If the Amendment process plays directly into the desires of conservatives and strict textualist constitutional scholars, why oppose it?
This sounds like a group of real conservatives instead of the highly-restrictive social conservatives that have taken over the Republican party in the last 15 years or so.
Real conservatives are all about government being as nonintrusive as possible. That includes things like personal morality. Barry Goldwater, the most famous of old-school conservatives, said on more than one occasion that gays deserved to serve their country as much as straights did, and said(this is a quote) that “all good Christians should kick Falwell in the ass”.
I agree with jayjay that these sound like genuine Conservatives*, not just people on the political Right wing who have co-opted the default “conservative” label.
I don’t blame you for being surprised. I wish there were more conservatives of this type, though - I think the national discourse would be much better if there were.
I was taught that a conservative was for conserving the constitution as written, a liberal was one that saw the constitution as a work in progress and was willing to make changeIWhats. The nomenclature has evolved in the last century, the emphasis now on social and economic issues.
Would a true conservative want an amendment banning the burning of Old Glory, or would he be scared shitless of the implications in limiting free speech?
It would help in the assessment if you identified exactly which group was sponsoring the comercial. Saying it was “a conservative group” means almost nothing.
Problem is, I’ve only heard the commercial once and I can’t remember which group sponsored the commercial.
I guess my follow-up question is this: to these “true” conservatives, what purpose does the Amendment process have if the Constitution should be set in stone?
How do you know it was conservtive? Did they announce it themselves?
I don’t think that is the issue. To many conservatives, issues such as marriage have always been a matter for the states to define, not the federal government. Ammending the federal Constitution should be reserved for weighty matters (like ending slavery) and not to be cluttered with the “issue of the week”.
I would hazard a guess (and it’s only a guess) that many conservatives who are against a federal constitutional amendment would not oppose one at the state level.
I’m pretty sure they did (and the radio network in particular, 1210 AM in Philadelphia, is almost exclusively conservative programming, the exception being the Sinatra they play on Sunday mornings). I have a vague recollection of the group having a name like “Conservatives for Fewer Constitutional Amendments” or somesuch.
So is this branch of conservatism opposed to the amendment as written? Let’s say the proposed amendment said something like “The legal definition of marriage shall be left to the states; the federal judiciary shall have no role in this definition.” Would that be OK? I have to imagine that conservatives whose primary goal is the limitation of the federal government are nonetheless upset by fundamental due process and the incorporation doctrine, since they extend so many federal limitations to the states (clearly illustrated by the First Amendment’s use of the word “Congress”).
I realize that our bifurcated system of government is based on the theory that national issues are left to the federal government, and local issues are left to the states. I.e., military matters are left to the feds because you can’t have 50 states disagreeing on defense policy; criminal laws are largely left to the states because each state’s situation is unique, and policy may differ in each one. Nonetheless, where is the line drawn? Was the 13th Amendment theoretically improper because the definition of slavery should be an individual state issue? (I’d think not, since the federal Constitution refers to slavery twice.) How about abortion? How about term limits?
Again, far be it from me to speak for this unknown group of conservatives, but they might think that the 10th amendment would make that proposed amendment redundant:
They might argue for that amendment to actually be used once in awhile (which it doesn’t seem to be), but that is a different matter.
I’ve pointed out a number of times that Bob Barr has voiced opposition to the Marriage Amendment, on states rights grounds so far as I can tell.
At the risk of hijacking the thread, John, the Tenth Amendment is used all the time in constitutional issues; it merely isn’t cited by name. When the question is, “Can the Federal government constitutionally do something as empowered by statute?” or “Is this Federal regulation constitutional?”, the answer is nearly always based on whether it is founded in the constitutional grant of power to Congress (Article I, along with minor additions from several Amendments), with the occasional regulation being based on the Presidential grant of powers in Article II, though most derive from a statute which itself derives from the Article I grant. Conceded that many laws do a remarkable job of causing the grant of powers to practice yogic extremes of contortion to authorize them, the review nonetheless is based in whether one can reasonably find the power in the Constitutional grants.
What is not said is that the Tenth Amendment makes clear why the examination for a constitutional basis is necessary – because the Feds. can only pass laws under the powers delegated to them, and the “retained powers” belong to the States, unless the Federal constitution or their own constitutions prohibit them exercising it as well, when they revert to “we the people.” Without this specification, the question of whether or not the company accused of discriminatory hiring practices uses materials obtained through interstate commerce would be moot, because the powers not formally assigned to Congress in that grant of powers would be more or less up for grabs. Just as neither the OP nor you found it necessary to indicate that it’s the (federal) Constitution of the United States of America of which we’re speaking, the courts generally tacitly understand that any ultra vires laws are unconstitutional not because they’re in some mysterious way offensive to God, the I.P.U., or the spirit of the sanctity of laws, but because they deprive the states of their just power or citizens of privileges they would otherwise hold in the absence of such laws.
Not to continue the hijack (:)), but if that were true we’d see a lot of laws struck down on that grounds. Which, unless I’m mistaken, is rare indeed. I’m not naive enough to think that the reason for that is the good will of the Congress wrt that Amendment in the first place.
Do me proud. This is why I’m a conservative, why, I dare say, most of us are conservatives. It’s sure nice to see the schism demonstrated between us, and those social conservative assholes.
" . . . because the Feds. can only pass laws under the powers delegated to them, and the “retained powers” belong to the States . . . "
Okay. But let’s not forget, in the spirit of true conservatism, about the last part – “. . . or to the people.”
Arguing that one level of government has the right to (fill in the blank) where another does not is simply choosing between evils in many cases, and it seems against the instinct of our need or desire to be governed to fill in that last part – " . . . or to the people." Some still leave it as an open possibility that the founders thought the people could decide some issues all by themselves, with neither federal nor state governments intervening. I’m not sure why anyone would think that, really, except that it is what the Constitution actually says . . .
My limited understanding is that the 10th Amendment is the appendix of the Constitution: yeah, it’s there, but take it out and the body doesn’t work any differently. The most practical illustration of this is in the controversy over the Commerce Clause, whose modern usage has severely expanded Congress’ powers. IIRC, in U.S. v. Darby, 312 U.S. 100 (1941), the Supreme Court held that the 10th Amendment was not an independent limitation on state powers. (I’m not sure what this means…I seem to recall that the Court prefers to look for whether Congress is stepping outside of its Constitutionally-delegated powers, as opposed to whether it’s taking on a supposedly “reserved” function.) The only regard in which the 10th Amendment is applied today is that the federal government can’t force the states to enact certain laws: i.e., in New York v. United States, 505 U.S. 144 (1992), Congress couldn’t force the state of New York to participate in a toxic waste disposal program, and in Printz v. United States, 521 U.S. 898 (1997), it couldn’t compel a local sheriff to enforce the Brady Bill.
Other than that limitation, Congress theoretically steps into the states’ functions all the time with Commerce-clause legislation. We did see SCOTUS impose limitations on how often Congress could claim it was relying on the commerce clause in United States v. Lopez, 514 U.S. 549 (1995) (Congress couldn’t pass anti-gun legislation in school zones) and United States v. Morrison, 529 U.S. 598 (2000) (overturning the Violence Against Women Act). However, AFAIK, these cases have been the exception, not the rule, and we haven’t seen many cases follow them since, my best guess being that SCOTUS probably didn’t get a lot of applause for overturning the Violence Against Women act…
The thing is, without a Constitutional amendment passed soon, I can’t see how social conservatives are ever going to stop gay marriage. Before long, there will be actual married gay couples raising kids and starting legally recognized families in the U.S. in increasing numbers, whether they be from other countries or from the outcome of battles states like Mass (now that it’s possible to win such suits, you can bet that they’ll be tried everywhere). Once that happens, it’s going to be very hard to turn back the clock without some real firepower on your side.
So, in that sense, this isn’t really an “issue of the week” matter. It’s deadly serious: if there is no amendment relatively soon, it’s likely that the “traditional” man/woman marriage thing will go out the window. Given that conservatives are split on it, I’d say that things don’t look good for social conservatives at all, because everyone else lacks the will to make it a big issue in the 2004 campaigns.
Coulter, I must admit, wasn’t a surprise (and it wouldn’t surprise me if her views on pre-marital sex differ from that of other social conservatives, either). Connerly surprised me, but back in 1998 when he “became a staunch supporter of the University of California’s proposal to offer health benefits to domestic partners of gay employees”.Cite. Goldberg has always set off a registers-in-the-ol’-gaydar kind of feeling (I want to say the same with Brooks, but I think it’s due to his name similarity with David Brock).
And George Will, it’s the bow-tie. I have this recollection of a deceased bow-tie wearing arch-conservative who was revealed to have been gay (I can’t remember who . . . Finkelstein, I think?). I bet Tucker Carlson also opposes this amendment.
As for Barr, perhaps his work with the ACLU has done him some good.
What was kind of surprising is that they went public with their opposition.
My understanding of Article IV is that whatever one state recognizes as a marriage has to be recognized by the other states. So this proposed amendment would need to modify Article IV in a very limited way, or otherwise would lead to a very messy situation.
