The Volokh Conspiracy -

How not to Argue Against a Constitutional Amendment:

This op ed by prominent federal Judge J. Harvie Wilkinson criticizing anti-gay marriage amendments has gotten a lot of attention in the blogosphere (e.g. here, here, and here). I definitely agree with Judge Wilkinson's conclusion - that anti-gay marriage constitutional amendments at both the state and federal level are deeply misguided. But I have serious doubts about some of his reasoning:

Twenty states have constitutional amendments banning gay marriages; many more are in the offing. On the ballot this fall in Virginia and five other states will be proposed constitutional amendments banning gay marriage. Passage of the amendments is all but foreordained, but the first principles of American law will be further endangered....

The Framers meant our Constitution to establish a structure of government and to provide individuals certain inalienable rights against the state. They certainly did not envision our Constitution as a place to restrict rights or enact public policies, as the Federal Marriage Amendment does.

Ordinary legislation — not constitutional amendments — should express the community's view that marriage "shall consist only of the union of a man and a woman." To use the Constitution for prescriptions of policy is to shackle future generations that should have the same right as ours to enact policies of their own. To use the Constitution as a forum for even our most favored views strikes a blow of uncommon harshness upon disfavored groups, in this case gay citizens who would never see this country's founding charter as their own.

I don't think that a proposed constitutional amendment should be rejected merely because constitutions shouldn't "enact public policies." To the contrary, one of the main reasons for having a Constitution in the first place is to "enact" certain "public policies" in a way that makes it very difficult for government officials to change. The First Amendment certainly enacts a public policy on freedom of speech and religion; the Fifth Amendment Takings Clause enacts a policy on the protection of private property; the Fourth, Sixth and Seventh Amendments enact policies on various issues in criminal and civil procedure, and so on.

Similarly, it isn't a very compelling argument to claim that an amendment should be rejected because it "strikes a blow . . . upon disfavored groups . . . who would never see this country's founding charter as their own." The First Amendment surely "strikes a blow" against "disfavored groups" who oppose freedom of speech and religion, such as Communists, Nazis, and radical Islamists. Most members of these disfavored groups surely don't see the Constitution as "their own." The Thirteenth Amendment was bitterly opposed by slaveowners who saw it as "strik[ing] a blow" against the very foundation of their way of life. Virtually any Amendment that accomplishes an important goal "disfavors" at least some groups. The real question is whether it is justified in doing so. The difference between gays victimized by anti-gay marriage amendments and slaveowners harmed by the Thirteenth Amendment is that the latter deserved what they got, while the former, in my view, definitely do not.

Nor am I persuaded by Wilkinson's argument that constitutions should never be used to "restrict rights." After all, the Thirteenth Amendment not only restricted but actually abolished the right to own slaves, a right that had been protected by the Supreme Court in several major decisions such as Dred Scott and Prigg v. Pennsylvania. Yet this restriction of a "right" was surely justified. Perhaps Wilkinson meant to say that constitutions should only avoid restricting those rights that are desirable and just. "Bad" rights are fair game. But if so, gay marriage opponents have no reason to accept his argument, since they believe that the claimed right to gay marriage is completely unjustified. Once again, the real issue is not whether "rights" have been restricted, but whether the restriction is justifiable or not.

Finally, Wilkinson is on to a somewhat better argument when he says that we should not "shackle" future generations with a constitutional mandate unless we are quite sure that the rule it establishes is sound. Fair enough, but this still should not deter those gay marriage opponents (and there are many of them) who feel very certain that they are right about the issue. Moreover, it's important to remember that most state constitutions are far easier to amend than the federal constitution is - which is one reason that so many state anti-gay marriage amendments have been adopted so quickly, over the last two years. At the state level, constitutional "shackles" are not nearly as tight as they are at the federal level.

In sum, Judge Wilkinson is absolutely right to oppose anti-gay marriage amendments. But the real reasons to do so are that gay marriage is right and just and that the threat of runaway "judicial activism" cited by supporters of the amendments is vastly overblown (as co-blogger Dale Carpenter has documented on numerous occasions, including here). It isn't because constitutions should not be used to "enact policies" or "restrict rights" or "shackle" future generations. Almost any constitutional amendment does some or all of these things.

UPDATE: It may be worth clarifying the fact that my main point is that Judge Wilkinson's arguments could be used against virtually any constitutional amendment, including many (such as the Bill of Rights and the Thirteenth Amendment) that command overwhelming support and that he himself would probably endorse.

UPDATE #2: Perhaps the most common objection raised against my argument by various commenters is some variation on the claim that Judge Wilkinson is merely arguing that we should be cautious about constitutionalizing our policy preferences, other things equal. I don't necessarily disagree with this sentiment. Unfortunately, Wilkinson's argument goes far beyond it. He categorically states that constitutions should not be used "as a place to restrict rights or enact public policies," or to "shackle future generations." Nowhere does he qualify these statements by suggesting that they hold true only if other things are equal. If he had meant to qualify his reasoning in this very significant way, I think that Wilkinson would have said so explicitly. Moreover, an "other things equal" interpretation of Wilkinson's argument greatly undermines his case against the anti-gay marriage amendments. After all, those who support such amendments emphatically do not accept the premise that other things are equal because they believe that gay marriage is a grave threat to important public values. An "other things equal" argument against the amendments only has merit if you assume that the establishment of gay marriage is not a significant problem. But if you believe that (as I certainly do), you probably wouldn't support anti-gay marriage amendments in the first place.

	[Dale Carpenter, September 5, 2006 at 12:49am] Trackbacks Judge Wilkinson Comes Out Against State and Federal Marriage Amendments: Read it here. J. Harvie Wilkinson III, who serves on the U.S. Court of Appeals for the Fourth Circuit, is a prominent judicial conservative. The occasion for this particular op-ed is the sweeping Virginia state constitutional amendment on the ballot this fall. Proponents of the amendment say that states need protection from activist judges in other jurisdictions, but states already have this protection through the Defense of Marriage Act and public policy defenses allowed under the full faith and credit clause. As a result, a constitutional amendment is at most a backstop for powers that states possess without any congressional action at all. There is no greater need for such a constitutional backstop here than there is for a constitutional amendment bolstering states' authority to pass a sales tax, establish a transportation department or support public education. The Federal Marriage Amendment has helped spread the constitutional fever to the states. State constitutional bans on same-sex marriages vary considerably in their wording, particularly with respect to civil unions. But most would repose in judges the authority to interpret such ambiguous terms as "domestic union," "similar to marriage," "rights, obligations, privileges and immunities of marriage," "incidents of marriage" and so forth. Thus the irony: Those who wish to curb activist judges are vesting judges with unprecedented interpretative authority whose constitutional nature makes it all but impervious to legislative change. To constitutionalize matters of family law is to break with state traditions. The major changes in family law in the 19th and 20th centuries, such as the recognition of married women's property rights and the liberalization of divorce, occurred in most states at the statutory level. Even the infamous bans on interracial marriage were adopted nonconstitutionally by 35 states, and by constitutional amendment in only six. Where is the threat that justifies so radical a break with our constitutional heritage? State courts in Georgia, New York and Washington have recently rejected invitations to follow Massachusetts and find a right to same-sex marriage in their constitutions. The great majority of state court judges -- more than 80 percent by some counts -- are subject to election in some form and unlikely to overturn state legislatures on so volatile a matter as same-sex marriage. States have numerous tools that enable them to reject objectionable marriages from other jurisdictions -- tools that have long been the basis for refusing to recognize marriages involving polygamy, incest, and underage or mentally incompetent parties. . . . Is it too much to ask that judges and legislatures acknowledge the difficulty of this debate by leaving it to normal democratic processes? In fact, the more passionate an issue, the less justification there often is for constitutionalizing it. Constitutions tempt those who are way too sure they are right. Certainty is, to be sure, a constant feature of our politics -- some certainties endure; others are fated to be supplanted by the certainties of a succeeding age. Neither we nor the Framers can be sure which is which, but the Framers were sure that we should debate our differences in this day's time and arena. It is sad that the state of James Madison and John Marshall will in all likelihood forsake their example of limited constitutionalism this fall. Their message is as clear today as it was at the founding: Leave constitutions alone. Related Posts (on one page): How not to Argue Against a Constitutional Amendment: Judge Wilkinson Comes Out Against State and Federal Marriage Amendments: Comments [Ilya Somin, September 7, 2006 at 11:15pm] Trackbacks How not to Argue Against a Constitutional Amendment: This op ed by prominent federal Judge J. Harvie Wilkinson criticizing anti-gay marriage amendments has gotten a lot of attention in the blogosphere (e.g. here, here, and here). I definitely agree with Judge Wilkinson's conclusion - that anti-gay marriage constitutional amendments at both the state and federal level are deeply misguided. But I have serious doubts about some of his reasoning: Twenty states have constitutional amendments banning gay marriages; many more are in the offing. On the ballot this fall in Virginia and five other states will be proposed constitutional amendments banning gay marriage. Passage of the amendments is all but foreordained, but the first principles of American law will be further endangered.... The Framers meant our Constitution to establish a structure of government and to provide individuals certain inalienable rights against the state. They certainly did not envision our Constitution as a place to restrict rights or enact public policies, as the Federal Marriage Amendment does. Ordinary legislation — not constitutional amendments — should express the community's view that marriage "shall consist only of the union of a man and a woman." To use the Constitution for prescriptions of policy is to shackle future generations that should have the same right as ours to enact policies of their own. To use the Constitution as a forum for even our most favored views strikes a blow of uncommon harshness upon disfavored groups, in this case gay citizens who would never see this country's founding charter as their own. I don't think that a proposed constitutional amendment should be rejected merely because constitutions shouldn't "enact public policies." To the contrary, one of the main reasons for having a Constitution in the first place is to "enact" certain "public policies" in a way that makes it very difficult for government officials to change. The First Amendment certainly enacts a public policy on freedom of speech and religion; the Fifth Amendment Takings Clause enacts a policy on the protection of private property; the Fourth, Sixth and Seventh Amendments enact policies on various issues in criminal and civil procedure, and so on. Similarly, it isn't a very compelling argument to claim that an amendment should be rejected because it "strikes a blow . . . upon disfavored groups . . . who would never see this country's founding charter as their own." The First Amendment surely "strikes a blow" against "disfavored groups" who oppose freedom of speech and religion, such as Communists, Nazis, and radical Islamists. Most members of these disfavored groups surely don't see the Constitution as "their own." The Thirteenth Amendment was bitterly opposed by slaveowners who saw it as "strik[ing] a blow" against the very foundation of their way of life. Virtually any Amendment that accomplishes an important goal "disfavors" at least some groups. The real question is whether it is justified in doing so. The difference between gays victimized by anti-gay marriage amendments and slaveowners harmed by the Thirteenth Amendment is that the latter deserved what they got, while the former, in my view, definitely do not. Nor am I persuaded by Wilkinson's argument that constitutions should never be used to "restrict rights." After all, the Thirteenth Amendment not only restricted but actually abolished the right to own slaves, a right that had been protected by the Supreme Court in several major decisions such as Dred Scott and Prigg v. Pennsylvania. Yet this restriction of a "right" was surely justified. Perhaps Wilkinson meant to say that constitutions should only avoid restricting those rights that are desirable and just. "Bad" rights are fair game. But if so, gay marriage opponents have no reason to accept his argument, since they believe that the claimed right to gay marriage is completely unjustified. Once again, the real issue is not whether "rights" have been restricted, but whether the restriction is justifiable or not. Finally, Wilkinson is on to a somewhat better argument when he says that we should not "shackle" future generations with a constitutional mandate unless we are quite sure that the rule it establishes is sound. Fair enough, but this still should not deter those gay marriage opponents (and there are many of them) who feel very certain that they are right about the issue. Moreover, it's important to remember that most state constitutions are far easier to amend than the federal constitution is - which is one reason that so many state anti-gay marriage amendments have been adopted so quickly, over the last two years. At the state level, constitutional "shackles" are not nearly as tight as they are at the federal level. In sum, Judge Wilkinson is absolutely right to oppose anti-gay marriage amendments. But the real reasons to do so are that gay marriage is right and just and that the threat of runaway "judicial activism" cited by supporters of the amendments is vastly overblown (as co-blogger Dale Carpenter has documented on numerous occasions, including here). It isn't because constitutions should not be used to "enact policies" or "restrict rights" or "shackle" future generations. Almost any constitutional amendment does some or all of these things. UPDATE: It may be worth clarifying the fact that my main point is that Judge Wilkinson's arguments could be used against virtually any constitutional amendment, including many (such as the Bill of Rights and the Thirteenth Amendment) that command overwhelming support and that he himself would probably endorse. UPDATE #2: Perhaps the most common objection raised against my argument by various commenters is some variation on the claim that Judge Wilkinson is merely arguing that we should be cautious about constitutionalizing our policy preferences, other things equal. I don't necessarily disagree with this sentiment. Unfortunately, Wilkinson's argument goes far beyond it. He categorically states that constitutions should not be used "as a place to restrict rights or enact public policies," or to "shackle future generations." Nowhere does he qualify these statements by suggesting that they hold true only if other things are equal. If he had meant to qualify his reasoning in this very significant way, I think that Wilkinson would have said so explicitly. Moreover, an "other things equal" interpretation of Wilkinson's argument greatly undermines his case against the anti-gay marriage amendments. After all, those who support such amendments emphatically do not accept the premise that other things are equal because they believe that gay marriage is a grave threat to important public values. An "other things equal" argument against the amendments only has merit if you assume that the establishment of gay marriage is not a significant problem. But if you believe that (as I certainly do), you probably wouldn't support anti-gay marriage amendments in the first place. Related Posts (on one page): How not to Argue Against a Constitutional Amendment: Judge Wilkinson Comes Out Against State and Federal Marriage Amendments: Comments