« Bringing Political Ads into the 20th Century | Main | July 4, 1776 »

July 03, 2004

Amendments and Republican Government

Glenn Reynolds and Spoons are having a mild disagreement regarding the Campaign to Protect the Constitution. The Campaign's goal is to defeat the proposed Federal Marriage Amendment, which is a reaction to the gay marriage debate and the decision by the Massachusetts Supreme Court to create a right to gay marriage through judicial fiat. (Hmmm, no editorial comment there...) While I do not support the amendment, and in fact would vote in favor of legal gay marriage were it a ballot option, I think Spoons is in the right in this disagreement. (Spoons is also opposed to the amendment; he just doesn't think that the Campaign is going about its opposition in a reasonable way.)

I think that amending the Constitution is a serious matter, and that it shouldn't be amended for frivolous reasons. However, there are really only three ways Americans settle Constitutional questions in the long run: we amend the document, we let the courts decide, or we fight a war. Personally, I think the first method is by far the best of the lot. I hope I don't need to convince anyone that a second Civil War would be a very bad thing, so we'll just stipulate that. So we're left with amendments and the courts. I know many people prefer the courts, for reasons that include the belief the courts can force through something the people wouldn't approve of and the belief the courts are better equipped to determine the right answers to such questions than the people. But I have to stand with those who oppose the courts doing anything more than interpreting the law as it is written, regardless of their personal preferences.

I've done a lot of wargaming in my time, and there is a particular breed of gamer that everyone fears: the rules lawyer. Rules lawyers are generally not particularly good players, so they seek out peculiarities in the rulebook and try to use them to gain an unfair advantage over their opponent. So, over time, wargame companies had to develop an anti-rules lawyer rule: if the rules didn't say you could do something and didn't say that you couldn't, than you couldn't. Because it's simply impossible for any rulebook to cover every possible contingency, this rule prevented rules lawyers from arguing that they could do silly things simply because the rules didn't specifically prohibit them.

That's how I think law should generally be interpreted. If the Constitution doesn't specifically say Congress can do something, than they shouldn't be allowed to do it. (Yes, I realize there's no way we'll get there short of starting over.) When courts are called on to interpret laws, that is the rule they should use. As such an interpretation would prevent government from doing a great many things, I believe this would go a very long ways towards reducing the drag government places on the people and would force us all to really think about each expansion of government power before it occurred. I may not think that the income tax is the best way to raise revenue for the government, but at least we went about it the right way and actually amended the Constitution to permit it. If we were to do that more often I think we would have a much more effective (if smaller) government today.

I often hear the argument that the courts have to force change on the country, because otherwise the change wouldn't occur. That's a lovely justification, but it's incorrect. Brown v. Topeka Board of Education didn't fix the problem of racially segregated schools. President Eisenhower could have ignored the Court's ruling, or he could have simply left it to the states to enforce. The courts, in the end, don't provide us with any fundamental protections. It was not the courts that created the Bill of Rights; it was the people, through their elected representatives. The same is true of the civil rights act of 1964. Legal racial segregation came to an end in this country when a majority of the people realized that it was wrong, and acted to change it. The Supreme Court helped when it pointed out the fundamental unfairness of 'separate but equal,' but it took the people to create fundamental change. That is no less true today than it was then.

The FMA, at least as written, would be a bad addition to the Constitution (and, were the courts willing to restrain themselves as they should, there wouldn't even be a question of having to consider such an amendment). But it deserves to be considered on its merits and flaws, not shot down because the Constitution is some kind of holy writ. As Garry Trudeau observed back when Doonesbury was still funny, the Constitution is the owner's manual of the United States, and sometimes you've got to update it to take into account how the country has changed.

Shoot down the FMA because it's a bad amendment. But don't pretend that it's bad simply because it is an amendment.

Update (7/4/04): Glenn offers a good counterpoint: "amending the Constitution is like brain surgery -- risky and permanent enough that proponents of the operation bear a heavy burden of proof that it's really needed." In that he is absolutely right. Fortunately, the amendment process itself helps to ensure that boosters really do have to meet that standard more often than not, although the existence of the Prohibition amendment demonstrates that even with all the safeguards in the world, if you work at it hard enough, you can shoot up a brick every now and then.