President George W. Bush has amply demonstrated that he
is a stranger to the U.S. Constitution. Hes meddled
in education, about which the Constitution has not one
word. He aspires to give taxpayers money to
religious groups doing social work, despite the First
Amendments barrier to state entanglement with
religion. He invaded Iraq to oust its president, without
asking Congress for a formal declaration of war, as the
Constitution requires. And his respect for civil
liberties protected by the Constitution is less than
exemplary.
For this president, there has been no use for the
Constitution until now. He wants to amend it in
order to forbid the states from granting marriage
licenses to same-sex couples.
If Bush gets his way, it will be the most outrageous use
of the Constitution since the amendment to ban alcoholic
beverages in 1919. This harebrained idea indicates such
an astonishing ignorance of the purpose of the
Constitution that one has to hope that Bush has embraced
it purely out of expediency, to pander to a conservative
base that is disenchanted with his profligacy and
empire-building.
Although the Constitution set up the machinery of the
federal government and established various procedures,
the documents core purpose was to limit power in
order to protect life, liberty, and property. We can
argue over whether it has accomplished that purpose, but
the purpose itself is clear. The Founders did not want an
autocratic executive such as King George III. Nor did
they want a democratic despotism, which
Thomas Jefferson warned against. Government was to be
limited, its powers, in James Madisons words,
few and defined. The doctrine of enumerated
powers, along with the Tenth Amendment (reserving all
other powers to the states and the people), makes the
Framers objective abundantly clear.
For Jefferson, the Constitution was a cage for confining
the beast of government power and thereby protecting
liberty. Thus it must be inappropriate to add an
amendment that prohibits individuals from engaging in
peaceful, voluntary arrangements. To do so is to uncage
the beast and set it on people who are minding their own
business.
To put it bluntly, this amendment would sully the
Constitution. What was supposed to protect us from
government power will have been used to threaten and
restrain. And the precedent will be powerful. Regardless
of what the Framers would have thought about same-sex
marriage, such twisting of the Constitution would appall
them. So should it appall us all.
President Bushs remarks on this subject were a
subtle form of fear-mongering. If we are to prevent
the meaning of marriage from being changed forever, our
nation must enact a constitutional amendment to protect
marriage in America. Its a phrase he would
repeat: Our government should ... protect the
institution of marriage.
Protect it from what? Even if one believes that the
definitions of words are set in stone (a dubious
proposition) and that marriage for all eternity means a
joining of a man and a woman, it is not clear how
marriages so defined are threatened by same-sex unions
called marriages by the civil authority. The
president himself said the states should be free to
make their own choices in defining legal arrangements
other than marriage. So it all comes down to a
word.
As a man married to a woman, I cannot see how my
marriage, or marriage itself, is endangered if gay men or
lesbians marry and their marriages are accepted by the
authorities for tax and other civil purposes. I repeat:
What am I being protected from?
The president says he fears that states that dont
countenance same-sex marriages could be forced to
recognize them under the Constitutions full
faith and credit clause, which requires states to
accept the public acts, records, and judicial
proceedings of every other state. Theres a
way to address that without distorting the Constitution:
remove marriage from the government arena. As columnist
Michael Kinsley suggested, privatize it. Marriage
originated outside of government. Why is it any of the
governments business now?
Put marriage in the private realm, and then respect
peoples freedom to recognize or not recognize
same-sex marriages as their convictions dictate. As for
governments, they should not tread on individuals as long
as they are peaceful and respectful of the rights of
others.
Sheldon Richman is senior fellow at The Future of Freedom Foundation, author of Tethered Citizens: Time to Repeal the Welfare State, and editor of The Freeman magazine. Send him email.
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