Beyond the Framers!

Beyond the Framers!
by Joseph Carvin 7/14/04

Despite references in Jim's article to the constitutional amendment, I don't think the article really addresses the constitutional amendment much at all. The article strikes me as being about whether gay marriage should be lawful or not -- as opposed to being about whether it should be a constitutional amendment or not. And it is that last issue -- whether it should be addressed in a constitutional amendment -- that calls for an understanding of constitutional law, more than an understanding of scripture, psychology, etc.

What is the purpose of a Constitution? A constitution is supposed to be about what constitutes the government (or other body politic) that it establishes. Our national founders recognized that big government was a potential problem, so in their Constitution, they did much to try to limit what the federal government could do. To avoid tyranny, constitutions should be reserved for things that pertain to the structure of how government works. These days, not only do judges try to preempt the role of legislators but the people try to legislate through their constitutions. (I think it is absurd that the Florida constitution now has something in it requiring the legislature to build a high-speed rail system between Tampa and Orlando, something prohibiting the slaughter of pigs in certain ways, and something requiring pre-Kindergarten classes. We are going the way of California, with its slew of popular initiatives amending the state's constitution a thousand different ways.)

A constitution is supposed to establish and provide for the maintenance of effective government, and that's it. To enable a government to work for the people, without becoming a tyranny against the people. This means setting up the form of government; addressing the relative roles of the executive, judiciary, legislative branches of government, and of the people themselves; addressing how such branches get staffed (appointment or election, terms of office, etc.); balancing the relative powers of the states vis a vis the federal government; and answering the necessary structural questions about the powers that the people want the government to have, or don't want it to have -- what government CAN do (like tax the people, raise an army, declare a war, decide legal issues) and what it CAN'T do (like infringe free speech or religion, deny due process, etc.)

In my view, the Constitution already addresses the issue at hand regarding marriage, and wisely so. In the 10th Amendment (which, regrettably, the activist judiciary has already all but written out of the document), the Constitution already says, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Basically, the framers of the Constitution wanted the federal government to be a very limited one, so that most of life's decisions would be made by individual citizens or, through the political process, by their elected representatives in state legislatures. NOT by the federal government. (I believe that Roe v. Wade was wrong not because of how it decided the abortion question, but because it addressed the abortion question -- as a matter of federal constitutional law -- in violation of the 10th amendment.)

Whether something should be a constitutional amendment or not is not at all the same as whether it is a good idea or not. In my view, our federal government has no more business getting into the question what marriage should or shouldn't be than does my neighborhood homeowner's association, NATO, or my bowling league. I'd feel that way if I was for gay marriage, and I'd feel that way if I was against gay marriage. I want my bowling league to prescribe what bowling uniforms should be worn and what days of the week there will be play. I want my PTA to address student teacher relations, not attempt to guarantee peace in Europe. And I want NATO to be worried about peace in Europe, not whether the year-end school play should be a musical or not.

I say, let the Constitution do what constitutions are supposed to do -- define (and attempt to control) the constitution of the government -- i.e., the constituent parts, the make-up, the framework -- of government itself. Constitutions should create and sustain government so that people can govern themselves through the vehicle so created. ( As a vehicle for self-regulation, a government is like a car. Let General Motors design a car that's good at getting me where I want to go -- so that I, not GM, can decide where to drive it.) Government is a framework for how people can legislate and can interpret legislation, how people can finance the government through taxation, how people can change their elected government, through elections, recalls, impeachments, or otherwise...

If there were any place in the federal constitution for something about marriage (which I don't think there is -- since it should be a document which says how government will work, not what it will decide) it would, in my opinion, be something like, "The federal government has the power to define marriage." THAT would at least be closer to an appropriate attempt to use a constitution for what a constitution is supposed to do -- define the areas in which the government has jurisdiction to act -- not to make (and so decide for all time) the substantive questions of how we, as a free people, should regulate our conduct. For the federal government to say that Joe can or cannot marry Fred is, in my view, no different from the federal government deciding whether Joe can, or cannot, marry Karen. And that's true even if Fred is a woman and Karen a man.

Consider other aspects of the Constitution our forefathers gave us: it says the government has the power to declare war. It didn't say, "the government can declare war against the following countries..."

The Constitution says the government must hold elections -- it doesn't say that we must elect Republicans, not democrats, or liberals, not conservatives.

It says the government has the power to tax -- it doesn't attempt to say whether taxes should be high or low, or what products or services should, or should not, be taxed.

It prohibits states from engaging in cruel and unusual punishment -- but it doesn't say what's cruel or unusual.

It says the states may not deprive citizens of life, liberty or property without due process of law -- it doesn't even attempt to define what legal rights and procedures and safeguards satisfy "due process."

Even as to such "right-specific" things as freedom of speech and the freedom to bear arms -- the Constitution doesn't say people have the rights of free speech and a right to bear arms. It says that State governments may not infringe on the people's rights of free speech and bearing arms.

Again and again, the original framers of the constitution wrote provisions that attempted to regulate how the government of a free people would work, but NOT what decisions the government of a free people ought to reach. If the framers had thought they were smart enough, I suppose they'd have written a constitution that could never be amended. After all, if a constitution were the right place to attempt to decide all questions of right or wrong, why give the foolish people the power to amend it at all?

The 19th amendment was wrong not because alcohol sale and consumption was good or bad, but because instead of the constitution being used there to decide how self-government should work, the teetotalers tried to use the constitution for the purposes of deciding what free government should prohibit. It was the equivalent of General Motors making cars that wouldn't drive to gambling joints or brothels, or to the houses of liberals or Muslims -- except that GM could do that, as a free player in the market place -- and suffer going out of business as a result. But the whole point of our form of federal government is that the federal government should be more limited than that.

Personally, I am amazed at how many people fail to see the role of a constitution in a "free" government. I think that people who believe in an Almighty who gave Adam the power to sin (free will) should be especially understanding of a constitution that leaves room for people to vote laws one way or another through their elected representatives -- after all, if God himself saw fit to let future generations err to one side or another, human beings who are far less wise ought not to attempt to foreclose future generations of free people from governing themselves as they see fit.

"Using a constitution to foreclose free decision-making by future generations is nothing short of cross-generational tyranny."

So sayeth Joe... :-)