A healthy constitutional

Yesterday, I brought up once again the subject of gay marriage, and the Boston Glob’s latest effort to promote it. It brought out the usual host of arguments, including this latest salvo from one of the Glob’s pet columnists, Ellen Goodman. This worthy opens her tirade with this potent paragraph:

If we had just “let the people vote,” black children would have been confined to segregated classrooms, wives would have remained the property of their husbands, and slaves the chattel of their masters.

The irony of Ms. Goodman’s opening salvo is, apparently, lost on her. Let’s look at those three examples:

1) The doctrine of segregation was, indeed, struck down by the Supreme Court. But this was pretty much a reversal of an earlier ruling that declared it acceptable, saying it was fine as long as the facilities were “separate but equal.” It was the utter failure of that earlire decision that led to the dismantling of segregation.

2) “Wives would have remained the property of their husbands.” I might be stretching a little here, but I believe she’s referring to women’s emancipation, and one of the key elements of that was the right to vote. Here, it was no court that struck down the Constitutional provisions that restricted the franchise to men, but a Constitutional amendment that established justice.

3) “Slaves (would have remained) the chattel of their masters.” Again, my knowledge of the Civil War era is a bit spotty, but I seem to recall it was the Executive and Legislative branches that carried most of the water in the ending of slavery, with the Court’s most notable contribution being the Dred Scott case, a case whose extreme injustice served as a rallying cry for those opposing slavery. And after the war, it was once again Constitutional amendments that wrote the results of the war into the supreme law of the land.

This is one of the problems I have with Ms. Goodman and others of her ilk. They are dead-set convinced on what ought to be, and read affirmation of their beliefs into the Constitution and other places it just does not exist.

For example, the word “marriage” does not appear anywhere in it. They have to stretch and “interpret” other passages to find its relevance, finding the most fertile ground in the areas that deal with “equal protection” and “full faith and credit” and the like.

I don’t have too much of a problem with this, but it bothers me that their rather expansive (if not downright creative) interpretation wasn’t so limited to just the issues that they hold so dear to their heart. If they were a bit more honest, they’d have to say that while they disagree with certain elements of the Constitution, they do exist and must be recognized — and, if they want them changed, they need to amend the Constitution.

For, example, that pesky little 2nd Amendment.

The American Civil Liberties Union, that self-appointed guardian of all our rights, has extensive materials on each of our Constitutional rights, as well as those that have been “discovered” or “revealed” or “enhanced” or “recognized” in the 200+ years since the Constitution and Bill of Rights were passed. But out of all that, a single element of the Bill of Rights is accorded special treatment. Of all the rights spelled out, only the Second Amendment is considered to not be an individual right.

Here’s the actual text of the Second Amendment:

“A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

And here is the ACLU’s official interpretation of that statement:

We believe that the constitutional right to bear arms is primarily a collective one, intended mainly to protect the right of the states to maintain militias to assure their own freedom and security against the central government. In today’s world, that idea is somewhat anachronistic and in any case would require weapons much more powerful than handguns or hunting rifles. The ACLU therefore believes that the Second Amendment does not confer an unlimited right upon individuals to own guns or other weapons nor does it prohibit reasonable regulation of gun ownership, such as licensing and registration.

This tends to be the general philosophical underpinnings of the “gun-grabbers” — this is not a right of the individual, but of the several states. I challenge anyone to find any other Constitutional right that is a “collective” right and not an individual — especially in light of the 9th and 10th Amendments.

But back to my main point: yes, the issues Ms. Goodman raises are fine, outstanding examples of injustices that cried out for correction. But of those issues, only the segregation issue even comes close to the principles behind the gay marriage argument. Like it or not, sanction for slavery and the disenfranchisement of women were incorporated into the body of the Constitution, and no rational court with the slightest bit of integrity would have struck either down before the Constitution was duly amended. And in the case of segregation, it was a dependence on the Courts that, arguably, led to the problem in the first place.

The right of people to marry another of the same sex is, quite frankly, not a Constitutional issue (with a single caveat — see the extended section). It is a social issue, and as such should be determined by the society as a whole. The appropriate way of addressing that is through a direct vote by the people, or by a vote by their elected representatives. And as marriage is currently a creature of the several states and not a national issue, that means that it should be up to the 50 state legislatures to address this matter. And if those legislators prove to be craven cowards and do all they can to avoid taking a stand, the people can toss the bums out on their asses and elect worthy representatives, or end up like Massachusetts.

When given a chance, the American people tend to vote to do the right thing — eventually. I have enough faith in our system and our people to believe that, some day, gay marriage will be seen as no more controversial than an integrated military. But I just don’t see the urgency, the crisis behind it that would demand the scrapping of our entire system of laws, of checks and balances, just to address this one issue.

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The one sticking point of leaving certain matters up to the states is the “Full Faith and Credit” clause of the Constitution, in Article IV, Section 1: “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.” By my reading, and that of many others, this means that a marriage legally recognized by one state is valid in all states. This is the principle that made Las Vegas the nation’s divorce capital. I have not the slightest idea how the Courts will deal with this matter when the first gay couple moves from their state to one that refuses to recognize gay marriage, but I believe the courts will find a just resolution.

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