Tuesday, September 05, 2006

Glenn Reynolds and J. Harvie Wilkinson

Are smart guys, but both Prof. Reynolds and Judge Wilkinson are wrong on the need for constitutional amendments to protect marriage.

Judge Wilkinson recognizes that Judges started this problem, but offers no real advice on how to ‘democratically’ restrict or overturn these rulings. Essentially, his position on the issue is that the courts have ruled, so dissenters should shut up and go away:


“It would be altogether understandable for Congress and state legislatures to
counter this constitutional excess with constitutional responses of their own.
Yet it would be the wrong thing to do.”

I guess that we should just accept who’s boss.

Once the litigation started, it’s pretty much ordained that some combination of state and federal judges will impose it on the nation. It does not take much imagination to believe that a judiciary committed to emanations and penumbras will find a way to eviscerate the will of the people. It’s only a matter of time before some collection of Carter appointees overturns the Defense of Marriage Act. It’s pretty far fetched to believe otherwise.

For examples, see Roe, McCain Feingold, etc. If the courts had some sort of backlog of trust on these issues, then Judge Wilkinson might have a point. That trust was squandered long ago. There’s just no capital left to spend on trusting that we won’t have these kinds of social engineering rulings forced on us.

Amending constitutions is, in essence, a democratic task. Lots of petitions to be signed, campaigns to be run, voters to persuade. A much tougher row to hoe than simply to find a sympathetic judge. There appears to be no other way – and even amendments may not stop the ‘we are the law’ mentality of the judiciary – to reign in judicial excess. The courts have painted themselves into this box.


Proponents of gay marriage are seeking to prevent the public from having a democratic say in the matter, by using the courts to get what they want. The democratic process of debate, persuasion, and legislation has already been foreclosed by the courts of Massachusetts.

And, generally speaking, I like my Constitutions un-tinkered with.