Ruling leaves some candidates unhinged
Marriage inAmerica will be, over time, what Americans say it is, and last week’s decision camewith almost 3 in every 4 Americans already living in states where same-sexmarriage is legal.
WASHINGTON — In 1824, in retirement 37 years after serving as the Constitutional Convention’s prime mover, James Madison, 73, noted that the 1787 “language of our Constitution is already undergoing interpretations unknown to its founders.” He knew that the purport of the text would evolve “with the changeable meaning of the words composing it.”
Now, 147 years since ratification of the 14th Amendment, its guarantees of “equal protection of the laws” and “due process of law” mean that states, which hitherto controlled marriage law, must recognize same-sex marriages. Anthony Kennedy’s opinion for the court said: “The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty (Emphasis added.)
Many conservatives detect in those five words a dismaying intimation of a “living Constitution” too malleable to limit government because it conforms to whatever shape serves transitory political and cultural impulses. Conservative wariness is wise. So too, however, is recognition that Chief Justice Warren was not wrong when, in a 1958 case concerning the Eighth Amendment’s proscriptions of “cruel and unusual punishments,” he said: “The amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”
During April’s oral arguments, Chief Justice John Roberts said that people seeking same-sex marriage are “not seeking to join the institution” but are “seeking to change what the institution is.” Marriage in America will be, over time, what Americans say it is, and last week’s decision came with almost 3 in every 4 Americans already living in states where same-sex marriage is legal.
The decision came after Roberts showed conservatives the reality of judicial deference that they have often, and often thoughtlessly, advocated. Deferring to “what Congress meant to do,” Roberts rescued the Affordable Care Act from what he called Congress’ “inartful” means of doing it. The marriage and ACA decisions should cause the 2016 contest for the Republican presidential nomination to force candidates to clarify their thinking about the judiciary’s appropriate role in our constitutional system.
Among Republicans there is a lively debate about whether the judiciary’s primary duty is to facilitate majorities’ powers or to protect individuals’ rights. Which makes this a perilous moment for Republican candidates, who might compete to propose constitutional amendments that dramatize their dismay about the same-sex marriage decision.
Wisconsin Gov. Scott Walker’s minimalist amendment, concerning process rather than policy, would restore the traditional state control over marriage law. Others endorse an amendment defining marriage as between a man and a woman. Texas Sen. Ted Cruz also endorses “judicial retention elections”:
“Every justice, beginning with the second national election after his or her appointment, will answer to the American people and the states in a retention election every eight years. ”
It is disheartening that Cruz, who clerked for Chief Justice William Rehnquist, proposes turning the court into a third political branch. Imagine campaigns conducted by justices. What would remain of the court’s power to thwart overbearing congressional majorities? Sixteen months before the election, some candidates are becoming too unhinged to be plausible as conservative presidents.