Latter Day Federalists

This article is subtitled: "Why we need a national definition of marriage", and I found it very helpful. In the past I have been an advocate of the idea of letting the states decide the definition of marriage, mostly because I don't like the idea of messing around with the Constitution. But more and more I am convinced that this will not work. What happens if New York allows gay marriages, and Utah doesn't, and a couple moves from NY to Utah? Are they not married anymore? What about children, insurance policies, benefits?

In this article, Maggie Gallagher makes some incredibly good points. She even brings up the one point that has Brad unsure about whether he will support the amendment--although she doesn't have the same opinion as he does, obviously. Brad doesn't feel comfortable about the amendment because it would effectively block the legal reinstatement of polygamy by the Church (not that he believes polygamy will be back anytime soon) if that is in God's plan. (Presumably the prophet will know if this is a possibility. If the prophet recommends we vote for the amendment, Brad has no trouble supporting it.)

My only beef with this article is the fact that she calls the Church "The Church of the Latter-day Saints". Nice try, but she leaves out the most important part. Oh, well.

I was struck today by the title below a guest on a television news show. The show was discussing the fallout of the Iraq war and the two guests were both labeled as Iraqi-American. The label was so meaningful! I asked my wife if she could think of a better phrase to immediately idenfify the speakers and why their opinions on the subject might be worthwhile. She couldn't and neither could I.

That was the moment I realized why I hate the label African-American so much! It doesn't convey any meaningful information about the attitudes or aptitudes of a person. Aren't those things that really define you? It provides no more information about who a person is than the shorter phrase American. I don't know that they understand any better than any other American the subject of poverty or wealth. By virtue of the label, they don't have anything to add about the slave trade or the life on a plantation.

There was an interesting piece on Opinion Journal about John Kerry's wife being an African-American. Anyone can look at her and realize that the label doesn't identify the shade of her skin. If it is important for someone to identify the shade of their skin, just say it! For me, and most Americans of my generation, skin color really doesn't matter as much as personality. That is as it should be. I'm grateful that the Civil Rights movement helped erase some of the stereotypes.

I read this interesting article on Slate.

Not-So Supreme - The dumb new proposal to veto the Supreme Court. By Dahlia Lithwick

Note that I say "interesting" and not "insightful." Basically, the author, Dahlia Lithwick, claims that a new proposed law in Congress is dumb. That is pretty much her whole argument. She fails to explain why its dumb. It is just dumb.

The law is the same thing I proposed >here: allow congress to overturn decisions of the Supreme Court by super majority when a simple change in the law won't suffice.

Lithwick points out that the law will probably be struck down by the courts as unconstitutional. I agree. But I think it has potential as an amendment and I'd like to hear the argument against it rather than just a blanket label that it is a stupid idea.

I'm pondering the marriage amendment again. I've told you I don't like the amendment very much. It seems wrong that we should have to amend the constitution to uphold something that is already upheld by laws all over the place and already supported by a large majority of the people.

It seems so frustrating that judges can make law at this level with no simple way to overturn it. Justice O'Connor gave an excellent address at BYU where she discussed the importance of protecting the rights of the minority from the tyranny of the majority. This is an important point and it is the primary thing that is giving me pause with my version of a constitutional amendment.

I'd like to make a radical change. I don't think the framers of the Constitution envisioned a judiciary as powerful as it is. I think that they envisioned that judges would be impeached if they made the sorts of rulings seen in the Massachusettes marriage case. (I realize that was a state and not a federal ruling, but the principle remains.) However, in our current system, case law is every bit as valid as real law. I think it leaves a lot of power in the hands of the judiciary without an effective check by another branch of government. I don't think that is what the framers wanted. The only current check is impeachment and that doesn't address the problem of past decisions.

What if we amended the constitution to allow the legislature, by a 3/4 majority plus the signature of the president (with 4/5 to override a veto) to veto the effect in case law of any court decision. We wouldn't take away the power of the court to decide the individual case before them, but we'd leave open the ability to overrule the precedent they set with a ruling. We let the legislature affect case law as well as written law. They get to do this easily already when a ruling is based on a normal statute. They can just pass a better statute. But when the ruling is [allegedly] based on a constitutional precept they are powerless unless they amend the constitution. That seems extreme for every case.

Is this a wacky idea? Too risky? Does it usurp the rightful role of the judicial branch? I think checks and balances need to be restored. We shouldn't have to amend the constitution to keep the common-sense reading of the law from being overruled by judges. After all, this is a democratic republic. The voice of the people is supposed to decide the issues before us!

PonderIt lives quite happily as an email discussion list. Perhaps this public place for posting thoughts will prove to be useful.