March 05, 2004

President George W. Bush has amply demonstrated that he is a stranger to the U.S. Constitution. He’s meddled in education, about which the Constitution has not one word. He aspires to give taxpayers’ money to religious groups doing social work, despite the First Amendment’s barrier to state entanglement with religion. He invaded Iraq to oust its president, without asking Congress for a formal declaration of war, as the Constitution requires. And his respect for civil liberties protected by the Constitution is less than exemplary.

For this president, there has been no use for the Constitution — until now. He wants to amend it in order to forbid the states from granting marriage licenses to same-sex couples.

If Bush gets his way, it will be the most outrageous use of the Constitution since the amendment to ban alcoholic beverages in 1920. This harebrained idea indicates such an astonishing ignorance of the purpose of the Constitution that one has to hope that Bush has embraced it purely out of expediency, to pander to a conservative base that is disenchanted with his profligacy and empire-building.

Although the Constitution set up the machinery of the federal government and established various procedures, the document’s core purpose was to limit power in order to protect life, liberty, and property. We can argue over whether it has accomplished that purpose, but the purpose itself is clear. The Founders did not want an autocratic executive such as King George III. Nor did they want a "democratic despotism," which Thomas Jefferson warned against. Government was to be limited, its powers, in James Madison’s words, "few and defined." The doctrine of enumerated powers, along with the Tenth Amendment (reserving all other powers to the states and the people), makes the Framers’ objective abundantly clear.

For Jefferson, the Constitution was a cage for confining the beast of government power and thereby protecting liberty. Thus it must be inappropriate to add an amendment that prohibits individuals from engaging in peaceful, voluntary arrangements. To do so is to uncage the beast and set it on people who are minding their own business.

To put it bluntly, this amendment would sully the Constitution. What was supposed to protect us from government power will have been used to threaten and restrain. And the precedent will be powerful. Regardless of what the Framers would have thought about same-sex marriage, such twisting of the Constitution would appall them. So should it appall us all.

President Bush’s remarks on this subject were a subtle form of fear-mongering. "If we are to prevent the meaning of marriage from being changed forever, our nation must enact a constitutional amendment to protect marriage in America." It’s a phrase he would repeat: "Our government should ... protect the institution of marriage."

Protect it from what? Even if one believes that the definitions of words are set in stone (a dubious proposition) and that marriage for all eternity means a joining of a man and a woman, it is not clear how marriages so defined are threatened by same-sex unions called "marriages" by the civil authority. The president himself said the states should be "free to make their own choices in defining legal arrangements other than marriage." So it all comes down to a word.

As a man married to a woman, I cannot see how my marriage, or marriage itself, is endangered if gay men or lesbians marry and their marriages are accepted by the authorities for tax and other civil purposes. I repeat: What am I being protected from?

The president says he fears that states that don’t countenance same-sex marriages could be forced to recognize them under the Constitution’s "full faith and credit" clause, which requires states to accept "the public acts, records, and judicial proceedings of every other state." There’s a way to address that without distorting the Constitution: remove marriage from the government arena. As columnist Michael Kinsley suggested, privatize it. Marriage originated outside of government. Why is it any of the government’s business now?

Put marriage in the private realm, and then respect people’s freedom to recognize or not recognize same-sex marriages as their convictions dictate. As for governments, they should not tread on individuals as long as they are peaceful and respectful of the rights of others.

Mr. Hornberger is founder and president of The Future of Freedom Foundation (www.fff.org).

Sheldon Richman is senior fellow at The Future of Freedom Foundation in Fairfax, Va., author of Tethered Citizens: Time to Repeal the Welfare State, and editor of The Freeman magazine.

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