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December 09, 2004

Reynolds & Sullivan Continue to Distort on the FMA

The typical blather is here.

Two points:

First, whatever our "cherished principles of federalism" might be, there's also the "cherished principle of amending the Constitution." Sometimes it needs to be modified to take into account a changing situation; that's what the amendment process is there for. Our current national income tax system -- and thus the method of funding for our government -- relied, after all, on "violating" our "cherished principles of federalism."

Second, liberal and libertarian commentors deliberately and dishonestly cast this debate in terms of states' rights-- a state's right to institute whatever marriage rules it wants, no matter what the federal government may say.

In fact, this isn't a case of state vs. federal power, but legislative vs. judicial power. Reynolds, Sullivan, and like-minded gay-marriage enthusiasts know that there is little hope for getting gay marriage enacted through the normal legislative -- democratic -- channels, and so they whine endlessly when steps are taken to prevent the judiciary from imposing such "marriages" on a recalcitrant population.

The fact of the matter is that state judiciaries routinely overturn state legislation-- and sometimes they overturn state constitutional amendments, claiming -- rather strangely -- that a state constitution is now in violation of the self-same state constitution. The only way to prevent such state-court law-making is to trump their purported power with an amendment they can't simply dismiss as "unconstitutional." And that requires a federal constitutional amendment.

I suppose we could call their bluff by modifying the FMA to say that no state or federal court has any power to compel civil unions or gay marriage, and that no part of any constitution shall be read as so compelling such an arrangement, and that any judicial opinion which seeks to claim otherwise shall be null and void and without any legal force whatsoever.

It's a compromise I can live with, and it would avoid this bullshit complaint about "states' rights." I can live with that kind of an FMA-- but can Reynolds and Sullivan?

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posted by Ace at 01:24 PM

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