June 05, 2006
How not to criticize the FMA
Now, I do not support passage or ratification of the Federal Marriage Amendment. I don't think there's any good reason to turn state judicial activism into a federal question, and I do think that the Amendment, if divorced from what I believe to be the original intentions of its ratifiers, might be misinterpreted to forbid states to recognize gay marriage even by state legislation or state constitutional amendment. [For a discussion of this, see this discussion by Jacob Levy; the proposed Amendment has been changed and now reaches only constitutions and not statutes, making it more likely that a state could legalize gay marriage by law, although still not by statute. And even the new one is vulnerable to violent misinterpretation, since state legislators and municipalities arguably derive their authority from the state constitutions in the first place.] So it is bad in both substance and form.
But Jason Mazzone's tongue-in-cheek attempt to "grade" the FMA as if it were a final exam is either confused or too-cute-by-half.
For example, Mazzone complains that:
43’s proposed amendment clearly does not fit with the existing Constitution. Defining marriage is more the province of legislatures—there is nothing comparable to a marriage definition in the Constitution. While the Constitution does refer to a union, it is not, as 43 wants it, a union between a man and a woman, but a “more perfect Union” among the states.
It is unclear why Mazzone thinks that defining marriage must be the province of statutory law rather than constitutional law. For many decades, both state and national citizenship were basically defined by statutory law, until that was utterly revolutionized by the Citizenship Clause of the 14th Amendment. There is certainly no structural principle of the existing constitution that forbids turning longstanding statutory questions into Constitutional ones via amendment.
This is also wrong:
43’s proposal purports to determine the meaning of state constitutions. Nothing in the federal Constitution does that. (Is 43 a radical nationalist?)
As I was reminded by Akhil Amar last spring, Article VI of the Constitution did exactly this. Prior to ratification of the U.S. Constitution, the state constitutions were ultimate law. Article VI clearly amends those state constitutions, by holding that they are not to be construed to conflict with the federal constitution, even by state judges. Indeed, Article VI goes so far as to stop state judges from construing state constitutions in a manner "contrary" to even federal statutes or federal treaties, including treaties made before the Constitution was even ratified. So there is nothing unprecedented about the federal Constitution purporting to determine the meaning of state constitutions.
Mazzone also says:
While many of the provisions of the Constitution confer rights on people, 43’s proposal singularly would take rights away. That represents a momentous change. (43 must be counting on the public having strong and deep support for the politicians who push this amendment.)
It is not true that the Federal Marriage Amendment would be the first constitutional amendment to take rights away from people. The 14th Amendment took away the rights of a number of people to become elected to state or civil office (if they had previously committed treason against the country). The 22nd Amendment took away the right to run for a third presidential term. The 13th Amendment took away-- thankfully-- the right to own another person as chattel. The 11th Amendment took away the right to a sue a state for certain kinds of redress. Now, I happen to think that (almost) every amendment to the Constitution has been an improvement, but naked talk of taking rights away as opposed to conferring them gets us noplace.
Mazzone finally gets on to some criticisms that I think have merit-- ambiguous wordings, unanswered questions and so on. But even there, one can't help but wonder if the original Constitution would fare much better by Mazzone's lights. The First Amendment has notoriously puzzled people by addressing its prohibition only to Congress, and by failing to illuminate what speech-acts (or other acts) are encompassed by "freedom of speech" or what sorts of government regulations "abridge" them. The Fourteenth Amendment has also baffled many, many people. Leaving aside the hash that courts have made out of the Due Process and Privileges or Immunities clauses, even the Equal Protection Clause has undergone some rough treatment. Regardless of whether you think it is Plessy or Brown that is more faithful to the Constitution, the Court has gotten it wrong roughly half the time.
Now, again, this is meant in no way to defend the Federal Marriage Amendment, which is a clumsy attempt to accomplish a bad goal. But the problem with it is not that it is "out of place" in our existing Constitution (which has survived some pretty radical edits over the years). Better to confront the thing on the merits. Comments (6)
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