Constitution Abuse

The right to marry doesn’t come from your neighbors, or society, or President Bush.

Kam Napier
President George Bush is behaving very
badly as a Republican. I’m thinking specifically of his recent call for a constitutional
amendment “defining and protecting marriage as a union of a man and woman as husband
and wife.” There are three things wrong with this idea.

This isn’t the
reason we have a constitution. Our Constitution defines the form and function
of government; it’s not a document for defining our interpersonal relationships.
For example, the Constitution establishes the three branches of government: executive,
legislative and judicial. It establishes the make-up of Congress. It reserves
the power to print money to the federal, rather than state, government.

12 original amendments to the U.S. Constitution were known, collectively, as the
Bill of Rights. There are now 27 amendments. The Bill of Rights is consistently
misunderstood. People often think that this document grants Americans their freedom
of speech, freedom of religion, right to keep and bear arms, freedom from unreasonable
searches and seizures of property. It does no such thing. The document presumes
that freedoms in all these areas already exist. We are literally born free, in
the eyes of the Constitution. The Bill of Rights protects our freedoms not by
granting rights, but by prohibiting the federal government from infringing on
those rights. Subsequent amendments typically identify in finer detail which pre-existing
rights the government may not trample. For example, the 19th Amendment didn’t
“give” women the right to vote, it stopped the government from keeping women away
from the ballot boxes. (See
for plain-language explanations of the whole document.)

Why is Bush’s proposal
bad Republican behavior? First, it’s inconsistent. Republicans can be downright
constitutional literalists when defending, say, the Second Amendment. However,
in this case, Bush’s proposal perverts the purpose of the Bill of Rights, turning
it into a document that limits freedoms instead of protecting them. The right
to marry doesn’t come from your neighbors, or society, or Bush. It comes from
your own autonomy to find somebody you think you can stand for a few decades,
or at least a long weekend in Vegas, look them square in the eye and say “I do.”

only other amendment that tried to buck the function of the Bill of Rights in
order to control citizens’ behavior was the amendment authorizing Prohibition-a
disastrous misuse of the document that was ultimately repealed.

the constitutional amendment is specifically meant to trump states’ rights, which
Republicans otherwise champion. Bush explained that he was worried “activist judges”
and liberal states would authorize gay marriages that other states would then
have to recognize under the Constitution’s “full faith and credit” clause. (What
are we supposed to do about activist presidents, I wonder?) However, as recently
as his 2000 campaign for the presidency, Bush was firmly in keeping with Republican
tradition by insisting that it was up to the states to decide issues such as gay
marriage for themselves.

Finally, Republicans constantly promise a smaller,
less intrusive government, one that stays out of the private lives of its citizens.
Telling us who we can and cannot marry is the opposite of that. It interferes
with our own private hopes and aspirations, it compromises the freedom of citizens
to enter into voluntary private contracts.

The federal constitutional amendment
is not a done deal. But in Hawai’i, something similar already is. In 1998, Hawai’i
voters amended the state constitution so that “the Legislature shall have the
power to reserve marriage to opposite-sex couples.” Indeed, state law does now
specify that a valid marriage contract “shall be only between a man and woman.”

view on this teeters around the 50/50 mark. For example nearly half of people
responding to a Honolulu Star-Bulletin poll disapproved of Bush’s proposed constitutional
amendment. But we’ve already jiggered around with our state constitution. Two
citizens can come before the state and say they want to get married. Under our
state constitution, if they’re the “wrong” kind of citizens, the government tells
them no. That’s what you get when you don’t have a strong constitution-life, liberty
and the pursuit of happiness, except where prohibited by law.