The Amendment Strategy

July 15, 2004

The only thing sillier than a liberal is a conservative trying to outmaneuver a liberal.

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Consider the anti-sodomatrimony amendment that just suffered a first-round knockout in the Senate.

Conservatives love the Constitution so much that every time a liberal court commits an outrage against it, they want to amend it. A state court — in Massachusetts, of course — has declared that the Fourteenth Amendment requires the legislature to certify homosexual unions as marriages. Equal protection of the laws, you know. Time for conservatives to swing into action!

As usual in such cases, they chose the worst possible strategy. Amending the Constitution is cumbersome. It requires a consensus that in this matter no longer exists. And trying to get a super majority behind a controversial cause is about the least efficient use of political resources one can imagine, when getting a mere majority is hard enough.

The conservatives’ approach also accepts the presumption that the Massachusetts ruling is legitimate unless the Constitution is changed. But the ruling went far beyond any reasonable interpretation of the words of the Constitution.

Nobody ever construed the Constitution to mandate sodomatrimony before, simply because, for openers, marriage has always meant a union of two people of different sexes. The Massachusetts court wasn’t reading the text dispassionately, as judges are supposed to do, but acting under the impetus of a current fad to impose its own will — just as the U.S. Supreme Court has often done, most notably in its 1973 abortion rulings.

So the problem isn’t the Constitution; it’s the judiciary, which has gone beyond usurping legislative powers to usurp powers even the legislative branch was never meant to have, such as redefining some of the most basic terms in the English language — human life, and now marriage.

What’s the remedy? The legislative and executive branches should simply treat judicial abuses of power as null and void, and refuse to enforce them. After all, the other two branches are charged with defending the Constitution — and that doesn’t mean enforcing unconstitutional whims of the courts.

[Breaker quote: Why conservatives keep losing]

[Breaker quote: Why conservatives keep losing]

The legislative branch should also apply the ultimate sanction for abuses of power: removal from office. Grossly arrogant justices should be impeached. Impeachment isn’t supposed to be reserved for adulterous presidents; it’s a safeguard against tyranny, a peaceful, lawful alternative to violent revolution.

Instead of proposing impeachment, the very mention of which might sober up the judiciary in a hurry, the conservatives implicitly impeach the Constitution. If it needs amending, there must be something wrong with it, not with the justices who abuse it.

But proposing constitutional amendments has become something of a conservative hobby. It feels so good! So conservatives in our time have offered a series of needless amendments — to ban abortion, to ban flag-burning, and now to ban same-sex “marriage” — and every one of them has failed miserably, leaving the Constitution’s meaning the plaything of the liberal judiciary.

If liberals ever prayed, they would thank God for sending them such futile and feckless opponents. Not only have these amendments wound up in limbo, failing to achieve their purposes; they have wasted conservative energy without doing liberals a bit of harm.

But the latest failed amendment, as one news report immediately noted, “has given President Bush a campaign issue.” That’s why Bush supported it — not because it had any chance of passing, but because its inevitable defeat would produce a conservative frustration helpful to his bid for reelection.

Republican politicians have learned to excite and exploit conservative passions without satisfying them. Conservatives, the GOP’s own useful idiots, fall for it every time. Bush can get away with violating just about every conservative principle as long as he gives lip service on a few hot-button issues that shouldn’t even be issues. Pushing an amendment that’s going nowhere is one way to do this.

Still, the quest for the Magic Amendment goes on. Conservatives aren’t giving up on the latest one: “I look at this as a ten-year fight. This is Day One,” says Charles Colson, now a leader of the religious right. Ten years is a mighty long time to invest in reversing a single state court ruling, even if you succeed.

And in the meantime, the courts will add plenty of other constitutional deformations. Shall we draft amendments to reverse all of them too?

Joseph Sobran

Copyright © 2004 by the Griffin Internet Syndicate,
a division of Griffin Communications
This column may not be reprinted in print or
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