Jewish World Review March 3, 2004 / 10 Adar, 5764
Guess who's changing tune on Constitutional amendments?
http://www.NewsAndOpinion.com | Don't worry, this isn't another column about gay marriage. But let me briefly refer to noted constitutional scholar and historian, Democratic National Committee Chairman Terry McAuliffe. Here's his view on amending the Constitution to bar gay marriage: "Our Constitution, a sacred document - you know, our forefathers knew what they were doing. This wasn't a rough draft. And let's not try to continually do amendments to it as we move forward. I would like the states to make the decisions on what they think is right in their individual state. It shouldn't be up to the federal government."
Did we know that Terry McAuliffe was even more of a strict constructionist on the Constitution than Antonin Scalia, Clarence Thomas and Robert Bork? Did I simply miss the DNC press release reporting that the Democratic Party officially opposes all of the amendments since the Bill of Rights? Actually, if we are to read McAuliffe literally, I suppose he's against the Bill of Rights, too - after all, the Constitution "wasn't a rough draft" and our forefathers "knew what they were doing."
I assume McAuliffe knows what he's getting his party into. After all, the original version of the Constitution provided that only three out of five blacks should count in elections. The Democratic Party already counts on a high turnout of the black vote to stay competitive. Making 40 percent of African-Americans ineligible to vote won't help much.
OK, enough about McAuliffe. But there's a larger point here. Liberal opponents of the Federal Marriage Amendment insist constantly that they consider the Constitution a "sacred document" that shouldn't be "tinkered" with. I'm very sympathetic to this view, but, frankly, I don't really believe them.
Here's my problem. Most of the liberals invoking the inviolability of the Constitution in the debate against the FMA are the same liberals who generally invoke the doctrine of a "living Constitution," which demands that we constantly "reinterpret" the document.
For example, in 2000 when asked what kind of judges he'd appoint, Al Gore replied, "I would look for justices of the Supreme Court who understand that our Constitution is a living and breathing document, that it was intended by our founders to be interpreted in the light of the constantly evolving experience of the American people."
Are you cottoning on to my confusion yet? Liberals believe that the Constitution shouldn't be literally changed but they advocate a constantly changing meaning for what's already in the document.
Look at it this way: If the U.S. Supreme Court came out with a decision requiring all states to recognize gay marriage, it's unlikely that a single gay marriage proponent would complain. When the Supreme Court ruled last fall that sodomy laws were unconstitutional, the Court read into the Constitution a meaning that hadn't been there for two centuries - and the living Constitution crowd cheered. How is that any less "tinkering" with the Constitution than writing down an amendment?
By the way, I'm singling out liberals for a reason. Conservatives who oppose amending the Constitution are against the sort of judicial activism that rewrites the meaning of the Constitution while leaving the text unchanged. There's nothing inconsistent about being against judicial activism and against "tinkering" with the Constitution through the amendment process. You can't say the same about liberals who see the Constitution as if it were Felix the Cat's magic bag from which they can pull out any public policy they want.
Not only are the "living" constitutionalists fickle about their love for the American charter, they're deeply skeptical about democracy itself. Why is it OK for unaccountable, unelected judges to willy-nilly say the Constitution says 2 plus 2 equals 5, but it's somehow tyrannical for the House, the Senate and 50 states to debate an amendment with wall-to-wall media coverage? Why are big-D Democrats so terrified of small-d democracy?
Opponents from the McAuliffe school typically respond that a constitutional amendment is permanent, entrenching "bigotry" in the Constitution for all time.
Well, we can argue about the bigotry claim another day, but I fail to see how amending the Constitution is any more or less permanent than the changes imposed on the Constitution's meaning by, say, the Warren Court.
I bet it would be a lot easier to repeal a constitutional amendment than it would be to overturn, say, the constitutional requirement of providing criminals with Miranda warnings, which was simply invented by the Supreme Court. Meanwhile, amendments have been repealed and superceded by other amendments several times.
The trouble with "living constitutions" is that of necessity they end up having no meaning other than whatever meaning judges read into them. Dead - or "enduring" - constitutions can be changed but they must change by popular consent. Liberals like McAuliffe, however, would prefer to leave the wording of the Constitution unchanged so long as they can control its meaning.
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