Strengthening Constitutional Self-Government

No Left Turns

Protecting marriage again

Volokh conspirator Dale Carpenter has written (or rather rewritten) an essay against the Marriage Protection Amendment. He tries to reassure us that there is no immediate national judicial threat to traditional marriage, because, after all, federal courts rarely depart that far from public opinion. Of course, he also indicates his belief that public support for experimentation in marriage (to put it mildly) is increasing. Proponents of an amendment thus "undemocratically" mistrust (evolving) public opinion. Stated another way, his opposition to an amendment (dealing with, as he puts it, a hypothetical) is a holding action until public opinion catches up with elite opinion. In other words, our push for an amendment protecting traditional marriage is only justified when it’s too late, when the supermajorities that might support it have vanished.

If your only values are democracy and the expansion of rights, you might find Carpenter’s argument congenial. He is officially a big fan of federalism as well, as long as it leaves room for the rights he cherishes. Thus for example he does note that states have traditionally been given free rein in family law, and we’ve tolerated the (relatively minimal, by comparison with what’s in the offing) differences between them. The one major instance of Supreme Court intervention (leaving aside polygamy in Reynolds v. U.S.) is Loving v. Virginia, which invalidated that state’s anti-miscegenation law. As he puts it,

The decision altered state law to uphold individual rights and to make the institution of marriage more inclusive, not to derogate individual
rights and to make marriage more exclusive.

I can imagine him defending a Supreme Court decision overriding state attempts to protect traditional marriage in precisely the same language.

He offers some interesting concerns regarding how the language of the amendment might be interpreted (which I regard as appropriate, even if I don’t necessarily agree with all of them). I find that it’s just a little curious that arguments about hypotheticals are appropriate when opposing the amendment, but not when favoring it.

He seems to suggest that a more narrowly tailored amendment (ruling out judicial activism above all else) might not be subject to his objections, though I wonder whether he’d support even that.

For all the relevant Volokh Conspiracy posts, go here, which will also send you to these posts on Bench Memos. Ed Whelan’s conclusion is worth noting:

Libertarians make very important contributions to public policy, but it seems to me that too many are blind to the accumulation of moral capital in a society that makes it possible to have limited government—and to the possibility of rapid and permanent depletion of that moral capital. The traditional institutions of marriage and the family are the best means discovered for building up that moral capital and producing citizens capable of self-government. As the damage already done to those institutions in recent decades shows, well-intentioned reforms (e.g., no-fault divorce and welfare policies that inadvertently encourage fatherless families) can have dramatic negative consequences.

The string at Bench Memos also calls our attention to these pieces: two articles by Stanley Kurtz, a piece by AEI’s Michael Greve proposing a "Constitutional DOMA," and this exchange at the Yale Law Journal’s The Pocket Part.

This ought to keep everyone busy for a while.

Discussions - 7 Comments

Whelan is correct, but "moral capital" is a bit abstruse. Rather, Libertarians believe in radical individualism, which means they chronically overlook or disparage Man as a social animal. Some even believe the Enlightenment foolishness that Man is inherently good, while others embrace the Lockean notion of the blank slate. Either way, they fail to understand the need for social discipline and moral control, which they tend to view as purblind medievalism and authoritarian. The "market" will provide whatever social goods are necessary via the checks-and-balances of competition...which of course can’t substitute for virtue.

When these Faux-Federalists say "Leave it to the states!", they really mean "Leave it to 5 out of 9 state supreme court judges!", not to the citzens of that state through legislation or referendums.

The proposed FMA has already had one salutary effect: stalemate.If the Supremes legislate homosexual "marriage", the FMA will pass.

In discussing the "marriage amendment," it is important to understand that much of the other side, certainly many of the real activists, are not in good faith.

Far more is at stake than whether government will give equal recognition to gay "unions." The real issue is whether society will be allowed to continue recognizing the unique status and value of real marriage, which is heterosexual and monogamous.

If two men, why not two men and one woman, two women and three men, etc., etc. The liberals have no good answer to this one. And many of them don’t care.

The rest of us should care.

The agenda is drastic, the situation is drastic, and a federal marriage amendment, while not ideal from certain standpoints, is needed to meet what we are facing on anything like equal terms.

How about 2 men, a woman, a palm tree and a dolphin?

Sounds a bit nutty and fishy all at the same time :)

Dain...do you ever stop to think that maybe this whole marriage issue is just a smoke screen...part of a package deal to the Iranians...(we are going to give them what they want (uranium enrichment) and look the other way) all along hopeing that something called Iranian civil society is pro-american... The gay marriage issue is a hidden second prong of appeasement and gives the Republicans something to do while Rome is burning. Iran feels threatened by the consequences of american individualism, the spirit of which (individualism) they are trying to suppress in the name of holding together a pure muslim culture. The Marriage ammendment signals to Iran that "individualism" must be made submissive to "virtue" which can be imposed even in the United States.

All the arguments showing marriage is a good thing are great...and 1 man and 1 woman will continue to be the norm for good reason...for a long time to come, as it was for a long time to pass...What do you fear?

"Virtue" doesn’t have to be "imposed"...that is the Iranian way.

Citizens capable of self-government arrise naturally because the creator endowed each with inalienable rights to life, liberty and the persuit of happiness and to achieve these goals he also gave them an ability to reason.

I would remind all that welfare policies are most often justified on the basis of shoaring up "moral capital" providing people a second chance ext... yet as Gilder notes this is an economic faux-pas...as are almost any attempts to finagle with "moral capital".

The idea that we have to produce citizens capable of self-government belittles the fact that human beings make choices...that the rich kid from a good christian familly can turn bad and that a poor kid raised by a divorced mother can make something of himself. This probably occurs because the rich kid was sheltered from consequence and thus reason was for the longest time inconsequential and mutable while for the poor kid it was constantly significant.

Unless our leaders (and political commentators) realize that they are not gardeners tending the next generation of topiaries to be sheltered from reasoning and the ensueing consequences...then we are all screwed, unless you extracate yourself from the pot and think for yourself.

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