Joseph Sobran’s
Washington Watch

Fixing the Constitution

(Reprinted from the issue of January 8, 2004)

The notorious Massachusetts court ruling that the state legislature must, within 180 days, recognize same-sex marriage raises all sorts of questions. One is simply whether the legislature will allow the judiciary to dictate to it in so outrageous a manner. It’s as if the court had handed down an ultimatum that private property must, within 180 days, be abolished. This is no exaggeration, for what the court has really ordered amounts not to the extension, but the abolition, of marriage.

Another question is whether the other states will have to accord “full faith and credit” to marriage, Massachusetts style, as the U.S. Constitution would seem to require. I think not. What the court said is nonsense, because marriage has always meant a union between a man and a woman, even in polygamous societies. If Ohio decrees that two and two make five, or that dogs are horses, are other states required to pretend that these propositions are true in Ohio? Sheer nonsense can only lead to chaos.

Conservatives propose to cope with the situation by amending the U.S. Constitution to define marriage properly. But the problem isn’t the Constitution; it’s the judiciary.

Liberals, of course, cherish the “independence” of the judicial branch. And up to a point, they are right. But we are many miles beyond that point now. True, the judiciary is supposed to be free to do its job without political pressure; as a rule, we don’t want politicians telling judges how they must rule in particular cases.

But there must be general boundaries, and when judges tell elected officials what laws they must pass, the need is acute. Judicial power isn’t supposed to be dictatorial, any more than legislative or executive power. In fact, Alexander Hamilton assured us that the judiciary would be “the least dangerous” of the three. Nobody imagined that it would one day subvert things as basic as the right to life and the nature of marriage. The gloomiest pessimist of 1787 (or of 1965, for that matter) never dreamed of the “activist” courts attacking the very foundations of civilized society as they do now.

And what is being done about it? A constitutional amendment to counteract the latest judicial outrage has been proposed. Well, what about the next outrage? And the one after that? Will each of them require a new amendment too?

The obvious solution is to start impeaching justices who usurp power until the whole branch gets the message. And maybe one new amendment is in order: one making impeachment easier, and specifying that usurping power definitely counts among “high crimes and misdemeanors.” But such a measure wouldn’t command the passionate popular support of a proposal to define marriage constitutionally.

One of our difficulties is that public officials in our day have far outrun the imaginations of the Framers. The “high crimes and misdemeanors” they envisioned were relatively abstract and decorous; they’d never conceived of a Bill Clinton in the presidency, so the Constitution makes no provision for, say, playing around with White House interns. It wasn’t easy to picture statesmen of the generation of George Washington and John Adams in the embrace of Monica Lewinsky on company time.

The judiciary, in its way, has become as wanton as Clinton. It’s almost too flabbergasting to deal with. Thomas Jefferson saw peril in judicial arrogance, but not on this scale. He hated John Marshall and favored the impeachment of Justice Salmon Chase (who was acquitted), but such men were models of restraint compared with our modern activists of the bench. After Chase’s acquittal, Jefferson bitterly concluded that impeachment was nothing but a “scarecrow.”

Certainly, in our day, the crows aren’t visibly scared. They’re merrily gobbling the seed corn, confident that nothing will be done to them. They are unelected and appointed for life, responsible to nobody, paying no penalty for the abuse of power. You’d think that the nature of the problem would by now have sunk in with angry conservatives, and that they’d come up with a better solution than repairing the Constitution every time it’s flagrantly violated. Is replacing your repeatedly slashed tires a “solution” to vandalism?

When courts keep discovering unmentioned “rights” to abortion and sodomy in the Constitution, it’s pretty silly to assume that the Constitution must be to blame. That’s exactly what any smart liberal would want conservatives to assume, so that they’ll seem to validate the liberal misreading and so that they’ll waste their time in misdirected and futile attempts to launch the cumbersome amendment process. In both respects, conservatives wind up wrestling against the Constitution itself.

Conservatives have fallen into this trap before. A few years ago, when liberals insisted that flag-burning was protected by the First Amendment, conservatives responded with a reflexive attempt to pass an amendment against flag-burning. The air hadn’t exactly been thick with fumes from incinerated stars and stripes, but that didn’t stop patriots from seizing the bait.

If it ain’t broke, don’t fix it. And the Constitution ain’t broke.
 
Black Power

The Canadian publisher Conrad Black, now married to an English newspaper columnist and elevated to the rank of Lord Black, is in the soup, and his stain is spreading. Investigations of his murky and possibly criminal financial doings reveal that he has paid conservative columnists George Will and Bill Buckley a $25,000 per diem for showing up at his two-day seminar. Both men have written favorably of him without mentioning their connections with him.

Black is usually described as a conservative himself; which shows how dubious that label has become. He is pro-war and pro-Israel, and he has just penned a huge, laudatory biography of Franklin Roosevelt (which has enjoyed a rave review in the allegedly conservative Washington Times).

This scandal hardly comes as a shock. Both columnists wear their principles lightly, though neither would seem to be desperate for cash. (Personal note: I once turned down an offer of $3,000 — money I could have used — to write a purely political article for a big porn magazine.)

Well, you never know what private bonds of affection bring these rich people together. Sweet mystery of life! But nowadays you can no more discredit an established “conservative spokesman” than you can defrock an Episcopal clergyman.

And as I’ve said so many times before, admiring Frankln Roosevelt used to be an automatic disqualification for membership in the conservative movement. Indeed the movement itself was largely a reaction against his legacy! Building the welfare state, trashing the Constitution, inflating the currency, lying us into war, chumming with Joe Stalin — these were but a few of FDR’s myriad dubious achievements.

But, like so many other things, including marriage, conservatism has been, in Daniel Patrick Moynihan’s famous phrase, “defined downward.” Perhaps FDR should also get credit for making it possible for neoconservatives to pass for conservatives.


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Joseph Sobran