The Unintended Consequences of an Amendment to Ban Gay Marriage

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Mr. Kyvig, Distinguished Research Professor and Professor of History at Northern Illinois University, is the author of UNINTENDED CONSEQUENCES OF CONSTITUTIONAL AMENDMENT (2000). He is a writer for the History News Service.

Current vocal advocates of a constitutional amendment banning gay marriage ought to consider the old Chinese adage, "Be careful what you wish for, because you may get it."

A gay marriage amendment, if adopted, could produce unintended and fateful consequences for the U.S. Constitution. Some of the possible results are certain to prove distasteful to the proposal's supporters, not to mention damaging to confidence in our constitutional system.

In amending the Constitution, unintended consequences should not be shrugged off lightly. Once an amendment is adopted, it can only be altered or removed by another amendment. Since a two-thirds vote in each house of Congress and ratification by three-fourths of the states is needed to approve any amendment, a small but zealous minority of Congress or state legislators can block the repair of a mistake. If we amend in haste, we will likely have to endure the result regardless of how much we come to regret it.

The nation's constitutional history is full of instances when the outcome of amendments varied from the original intent of those who adopted it. The 1919 amendment prohibiting all commerce in alcoholic beverages provides the clearest example that a constitutional amendment can have profoundly important unintended consequences. Though outvoted by temperance proponents, a significant minority of Americans saw nothing wrong with drinking alcohol. After ratification, many citizens imbibed homemade concoctions or illegally purchased beverages. Bootleggers, indifferent to the dry law, seized the opportunity to profit by satisfying the nation's thirst. The amendment failed in spectacular fashion to achieve the temperance movement's desired result, as is also likely to happen with a gay marriage amendment.

Organizations quickly arose to seek prohibition's repeal. They argued that the law simultaneously deprived the government of substantial tax revenue and created enforcement costs. They concluded that prohibition undermined general respect for law as well as the Constitution. Still, despite the widespread displeasure with its unanticipated results, repeal became possible only in 1933 through the extraordinary circumstances of the Great Depression and the momentary discrediting of the Republican Party that had sought to enforce the dry law.

Earlier, even the Bill of Rights and the Reconstruction amendments of the 1860s evolved in ways that their drafters could scarcely have imagined. So too did the seemingly simple 12th Amendment adopted in 1804 to remedy flaws in the presidential election system. It inadvertently reduced the vice presidency from a position held by the leader of the country's second most powerful political party to one occupied by a secondary figure in the most powerful party. One of the nation's two nationally elected officials thus became far less influential in policy decisions, which marked a setback for the democratic nature of the Republic. The three most recent amendments, dealing with presidential succession, voting by 18-year-olds and congressional pay, have produced unexpected results as well.

An anti-gay marriage amendment is likely to generate many unintended consequences. Refusing gay unions legal sanction will certainly not prevent the formation of loving and enduring gay and lesbian relationships. As with prohibition, an amendment would not end the dispute over cultural values, but it would erode the always fragile sense that laws deserve respect and obedience regardless of personal preference.

In addition, regard for the Constitution as a protector of the inherent equal rights of all citizens would be weakened, at least among a significant portion of the American public. Some people will realize that other minority practices could face similar threats from a majority indifferent to the principle of equal protection for all.

Marriage itself could also be an unexpected victim of the anti-gay amendment. A declaration that government, not the individuals involved, has the authority to determine which couples may wed could well lead to a general questioning of the merits of obtaining state sanction for a personal relationship. Denial of spousal benefits to same-sex couples could stir a powerful argument that a wide range of matters from health care to hospital visitation rights to joint filing of income taxes ought to be fundamentally reconsidered if some couples were to be excluded from fair and equal protection of law. In the past Americans have displayed remarkable inventiveness in response to constitutional amendments, and there is every reason to expect they would do so again.

The record of attempts to amend the Constitution suggests that the odds against any proposal being adopted are very long. Of some 14,000 amendments offered in Congress, only 33 achieved the necessary two-thirds approval by both House and Senate, and a mere 27 have been ratified by three-fourths of the states. Enough of that handful have produced unforeseen results to justify caution in approaching constitutional reform.

In the end, those who oppose a constitutional amendment banning same-sex marriage, even when they personally oppose the practice, are prudent protectors of the Constitution. Those who call for the amendment without a thorough investigation of potential effects irresponsibly jeopardize faith in the U.S. constitutional system.

This piece was distributed for non-exclusive use by the History News Service, an informal syndicate of professional historians who seek to improve the public's understanding of current events by setting these events in their historical contexts. The article may be republished as long as both the author and the History News Service are clearly credited.

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Dave Livingston - 1/7/2005

Hans Vought,

Thank you mucho for pointing out that despite the claims of contray propaganda Prohibition did indeed achieve to a large degree what was intended by its institution. Cutting access to alcohol served to improve generally the health of the working classes, improved the odds of families staying together. Granted, there was an element of nativism in the Prohibition movement, a resentment of all those urban Catholics poring into the country, most of whom settled in urban communities. Nonetheless, again, Prohibition achieved much of what it set out to accomplish. The plain fact is the so-called disease of alcoholism will not manifest itself unless there is alcohol available to be consumbed.

Regardless the inherent nativist aspect of the Prohibition Movement a Catholic Prohibition effort led by a priest developed in reaction to the observed destructiveness of alcoholism.

One striking example of the destructiveness of alcoholism was offered by the family of Ronald Regean, born into an Irish Catholic family. Ronnie's mother dismayed by the alcoholic temper of his father had Ronnie sent to a Protestant school in order to get him out of the destructive atmosphere created by his father's alcoholism. Otherwise, Ronnie would have grown up a good Catholic boy.

Paul Noonan - 7/19/2004

Thoughts on Prohibition:

1) Bait and Switch - It's always been my opinion that the pressure groups such as the Anti-Saloon League and WCTU that brought Prohibition about wanted to ban all alcoholic beverages, not just hard liquor. After the US entered WW1 in 1917 they harped on the German ancestry of the families that owned the major breweries, suggesting beer as well as whiskey was their target.

2) It is not at all clear that a majority of the population wanted the 18th amendment. The anti-liquor forces were organized and the opposition was not. As H.L. Mencken observed the average legislator will be cheerfully in favor of "astrology, polygamy or cannibalism" if the right pressure can be put on him. In fact, the 21st amendment repealing the 18th is the only consitutional amendment to be adopted by ratifying conventions instead of state legislatures, as the pressure groups had too much influence in too many state legislatures to hope to get it ratified that way. This means that the repeal of the 18th amendment was accomplished by the closest thing to a national referendum we've had in this country since the adoption of the Constitution.

3) While it is generally conceded that per capita consumption of alcohol decreased during Prohibition (although it increased as time went by during the 14 years of Prohibition) it is usually thought that drunkeness increased as there were fewer people having a cocktail before and/or wine with dinner and more people getting drunk at the speakeasy on Saturday night.

4) The increase in organized crime has already been addressed by another poster.

5) The fact that alcohol was produced illicitly meant that it was often not safe for consumption (including methyl - wood - alcohol in beverages). This was a negative consquence of alcohol consumption that did not precede or survive Prohibition.

mark safranski - 7/16/2004


A strong judiciary is one that is independent, relatively speaking, in the sense of not being an agent of the executive power( read: in the US). If by strength you mean wide-ranging, unchecked powers then what you want is something else under the judicial name.

You can call a king a judge if you like but he's still a king and not, as Sir Edward Coke once pointed out, well-suited by temperment to mete out justice *under the law*. The temptation to impose arbitrary solutions without respect to law is simply too strong for most people with all the resultant negative effects on society that arbitrary power entails. So far, I've seen little in my reading of history that proves Coke wrong. Judges *should* be given great power under the constraints that the field of application for the judicial power is *narrow*.

You mentioned the lack of enforcement power - famously illustrated by Andrew Jackson's quip regarding the Chief Justice. I would go further - the judiciary has a great store of moral authority based upon it's claim of impartiality in meting out justice. In our democratic society - and the United States is is a democracy despite the feeble Orwellian claims of Critical Theorists and Marxists - a court that trespasses the separation of powers doctrine in a hurry to " do good " delegitimizes the moral authority of the judiciary in the eyes of the people.

Moreover, this kind of activism tends to be deeply resented as an usurpation of legislative power, which it is. Good results through bad law will inevitably lead you to bad results down the road which is why you shouldn't be too quick to endorse taking short-cuts. It also represents an elitist impatience with democratic process, with the unenlightened stupidity of the masses and a wholly unmerited moral claim to superior wisdom - in short, the age-old excuse of anyone who ever wanted to justify arbitrary power.

BTW, Chris, I'm confident of your good intentions here in making the arguments that you do. what I'm asking is for you to look down the road to their logical conclusion and explain *how* an unaccountable, unelected judicial class with wide but ambiguously defined power would avoid all of the pitfalls inherent in placing unchecked power into human hands ?

Historically, even the best-intentioned leadership classes in such a situation seldom live up to their professed virtues for very long.




chris l pettit - 7/16/2004

At the moment I am a proponent of a position that is unpopular in some circles...that of a strong judiciary.

but I return to a vital point that the positivists out there will enjoy...the authority of the law...and the fact that the judges have no ability to enforce their decisions. The fact remains that in the right circumstances (read: not the US) the judiciary is in the best position to guarantee and protect basic human rights and values. You can still have legislation and amendments overturning judicial decisions, but on the topic of human rights, one must remember that they are inalienable and non-negotiable. What those rights are may be debated, but again, the judiciary is the best place to decide those questions as the law exists to attempt to rise above petty partisanship, religious and cultural biases, and blatant self interest. As I said above, the problem in the US is that the judges are all politically appointed and biased for the most part.

I would submit that the way South Africa chooses judges is far more democratic than any system we have in the US of doing anything in a supposedly democratic sense. Our legislature, at least federally and in most states is made up of members of the top 10% of society. The lower 90% is not represented...this is not democracy. To run for county commissioner, one still has to have a spare $5,000+, a sum not available for most Americans. Where is the democracy there if there is no choice available? A commission of 26 who are elected from every sector of society (South African law mandates that there be a certain number of professionals, academics, lawyers, corporate representatives, etc) is a hell of a lot more democratic than oligarchs making their self interested laws and appointing political lackeys to the bench.

When you find a democratic system that actually works and can guarantee the inalienable human rights that we all are supposed to have guaranteed (economic, social and cultural as well as civil and political) then you can lecture me about dominance of the judiciary. until that point, which I feel will be a long way off...your "legislature" and "democracy" arguments simply hold no water.

By the way...you will see throughout history that most of the truly great advancements made in the US resulted from judicial decisions when the Court was actually made up of true jurists (unlike the last 30 years) and social movements that resisted bigoted legislatures and executives. The legislature and the executives have been woefully behind the curve...and that is truly sad considering that the law tends to lag behind as well.


Derek Charles Catsam - 7/15/2004

So let me get this straight. You say you are not making an analogy with polygamy or incest. And yet part of your argument against the gay marriage debate as it has played out in the courts is to invoke polygamy and incest. You can't simply deny that you are maing the comparison and then make the comparison and expect that you can whitewash over it. If you are not making this analogy, then are you just making nonsequiters to take up web space? Of course you are not. You are using incest and polygamy and equating it with the gay marriage issue.

Unlike Adam, I do not have much use for those who oppose gay marriage. My brother is gay. You and your ilk would deny him the chance to share a life and legal rights with someone he loves. I do make the civil rights analogy inasmuch as rights are being denied to a class of people. And of course I will at least have the integrity to stand behind my analogies, such as this one -- if the state can regulate and deny marriage to gays, why is it not acceptable to do it for interracial marriages? Of course the answer is that it is not, as the Supreme Court appropriately noted in Loving, but your argument could be used to deny marriage rights to an interracial couple as well as to a gay one.

If someone were to write "I do not support discrimination against black people, I simply don't agree that prohibiting black people from marrying white ones constitutes discrimination," would that be acceptable? Then how can one possibly say that prohibiting a group from engaging in a social contract that others get to do is not prima facie discrimination? And why does it matter to you? Nope, my tolerance for intolerance is a lot lower than Adam's, no matter what sort of jargonistic niceties in which that intolerance is couched. Bigotry is bigotry.


Marc "Adam Moshe" Bacharach - 7/15/2004

I for one have no disrespect for those who oppose gay marriage, for whatever reason, although I do disagree with them.

I should add that on this specific issue, amending the Constitution seems totally premature. According to strict originalists (at least according to Bork, which is usually cited as the best example) any case that the Supreme Court cannot deduce from the text of the Constitution should not be taken, and thus left to the states. Thus far, there has been no attempt to impose anything on anyone from the federal government (quite the opposite when one considers the DOMA).

As for the MA court, it is easy to pick on it, but frankly, debate over gay marriage truly began when VT allowed for civil unions. In other words, we seem to be confusing Supreme Court judicial review, which is binding to the nation and unstoppable short of a federal amendment, with state courts, which could be easily overturned by a higher court, or which the states can overturn with their own amendment, a far less daunting and less consequential action.

Any talk of gay marriage spreading and other states being forced to accept it is mere hypothetical speculation that, however well reasoned, is still hypothetical. Does anyone really want to change our national Constitution over a conflict that has not even materialized yet? I know I do not.

Al Sharpton was wrong to suggest 3 new amendments to the Constitution during his campaign, as are all people who would so carelessly change that document because it just sounds good, or sounds like the right thing to do. When it comes to the Constitution, my philosophy is, if it ain't broke, don't fix it. Friends, as of right now, nothing has broken. The decision rests with the states, as it should. Let history remember that it was the Republicans who dragged it into the national arena.

mark safranski - 7/15/2004

Chris wrote:

"Marbury versus Madison...judicial review...came out of interpretation of the Constitution...strict constructionism is an ignorant and dangerous position...the Constitution was meant to be fluid, change with societal changes (called progress), and be interpreted by those who could understand it (presumably the Supreme Court justices...although I have my doubts due to their partisanship)."

So why bother having a written Constitution at all ? If at least the unambiguous text is not going to be respected at all ( " Congress shall make no law...") we might as well call it what it is, an oligarchy, because the Constitutional checks on the power of the Court are as subject to the Court's reinterpretation as any other part of the Constitution, right ?

Chris, when you combine your IL arguments for the ICJ with your views on American Constitutional interpretation you skirt dangerously close to asking for the establishment a judicial dictatorship as your ideal form of governance. Lawyers as the vanguard elite, more or less, checked only by expediency and a desire not to offend " progressive opinion" by the appointment of reactionaries.

The Constitution was meant to change and there are steps by which to make those changes so that they reflect not a mere majority but a societal consensus. Underlying the structure are important principles of federalism, separation of powers, checks and balances, limited government, popular sovereignty, individual liberty and judicial independence. Granted, over time the original balance of some of these principles have eroded to varying degrees but it would seem to me that you advocate sweeping most of them away entirely - or at least your arguments over time as a whole have that implication.

Hans Vought - 7/15/2004

I have great respect for all people, regardless of sexual orientation. Please don't jump to false conclusions, and please don't put words in my mouth. I did not equate gay marriage with incest (or polygamy, for that matter), nor was I implying any such connection. I merely cited the legal prohibitions against marrying close relatives or plural marriage as examples of state marriage statutes discriminating against certain people and practices. I do not believe in or support discrimination against gay people. I simply don't agree that prohibiting gay marriage constitutes discrimination.

Nor was I conflating statutory and common law. What I pointed out was that the Massachusetts Supreme Judicial Court violated its own stated standard of judicial review - "We interpret statutes to carry out the Legislature's intent, determined by the words of the statute interpreted according to 'the ordinary and approved usage of the language.'" The Court said that the ordinary and approved definition of marriage was the common law one. Then it proceeded to disregard that definition and create a new one, and apply it to the statutory law.

Of course bad precedents can and should be overturned. I cited Plessy in a previous post as an example of how judicial review can get out of hand, so obviously I am opposed to racial discrimination, too. Again, your insinuation is not true, and not appreciated. But wouldn't you concede that the way in which jurists arrive at their decisions is as important as the decisions themselves? The danger in judges redefining and reinterpreting is that it can be used in both good and bad ways - in other words, it can lend itself to abuses of power quite readily. And there are fewer checks and balances to restrain the judicial branch than the other two branches of government.

With regard to equal protection, the issue is what standard courts should use to review laws that have disparate impact on groups of people. As you know, rights are rarely absolute and clear-cut; rather, conflicting rights have to be sorted out.

In the case of polygamy, for example (and again, I am implying no equivalency to homosexuality), the US Supreme Court ruled in Reynolds v. US that outlawing polygamy was constitutional, even though it violated the Mormons' first amendment right to freely exercise their religion. I read recently that a splinter group of Mormons is currently challenging the ban on polygamy, based on the same legal reasoning used by gay marriage advocates. Are Mormons denied equal protection of the law because they are not allowed to legally have more than one spouse at a time? I don't think so, but perhaps the courts will disagree.

Derek Charles Catsam - 7/15/2004

Equal protection does hold. they can set limits and regulate. But they cannot regulate against whole classes of people. That is what equal protection is all about. I ike how you equate gay marriage with incest. I imagine you are miffed that someone else beat you to the box turtle analogy. Nice to see the regard you hold gay folks in.
Look, you can use your caps lock key all you want, but courts are empowered to engage in definitional questions if they believe that Constitutional principles are involved, if they think those definitions are being misused or misapplied, or if statutes or common laws conflict with one another. And of course i do note that you are very slippery, and indeed disingenuous here when you conflate common law with statutory law. That is why "ordinary and apporoved: language is not addressed as statutory language. Let's pretend a modicum of intellectual integrity holds here, eh? As for stare decisis, yes, it has a powerful hold. until one realizes that precedents can be wrong. Or do you still support Dred Scot or Plessy? Actually, I may not want to know the answer to that.

Marc "Adam Moshe" Bacharach - 7/15/2004

Stare decisis is not a judicial rule, it is a common legal practice that is (and indeed must be) violated at times (see cruel and unusual punishment cases, in which the Supreme Court has openly acknowledged that changing public opinion, not precedent, is the primary important factor).

The traditional definition of marriage is irrelevant so long as that traditional definition prevents homosexuals from enjoying the same marital rights as heterosexuals.

The equal protection argument does not fail. Your example that the law also prohibits heterosexuals from marrying the same sex is closely akin to the argument, often made at the time, that Jim Crow was okay because it also prohibited whites from entering colored bathrooms, attending colored schools, and so forth (although please note that unlike some, I do not compare the current debate with the Civil Rights movement).

I actually agree with you that sexual expression is an absolute human right, clearly it is not. However, that being the case, I would sooner see the state simply get out of the marriage business all together (no state recognition, no tax benefits, nothing) and allow it to be solely a religious issue than see homosexuals continuously denied this recognition that has become a right for heterosexual people.

Finally, the issue is not obtaining legal benefits (although clearly that is the most tangible expression of equality), the issue is homosexuals having the same rights as heterosexuals and that means marriage.

If homosexuality is not a choice, as I believe, and if it has been around (as it has been) since the beginning of time, often as an accepted practice, as in Greece and Rome, why should they be denied marital status? Religious convictions aside (and I don't make that claim lightly) would it not serve conservative interests to see homosexuals incorporated into the mainstream so that the only option for sexual freedom does not come from clubs and bars?

Hans Vought - 7/15/2004

Courts are NOT empowered to redefine legal terms in statutes. The very concept of the common law and stare decisis is that courts rule in accordance with the way previous courts have ruled in similar cases. As the opinion itself states, "We interpret statutes to carry out the Legislature's intent, determined by the words of the statute interpreted according to 'the ordinary and approved usage of the language.'" It goes on to point out that the "ordinary and approved" meaning of marriage is the union of one man and one woman, and that the plaintiffs in the case did not challenge that definition. Nevertheless, the majority on the court proceeded to ignore the ordinary and approved definition of marriage and substitute a new one, one which the elected legislature clearly never intended.

Minority rights do indeed need protection from the tyranny of the majority. However, the equal protection argument fails. As the opinion notes, states have the power to set limits on marriage: one must obtain the proper license, one must not marry a close relative, one must not marry more than one spouse at a time, and one must not marry a spouse of the same sex. These restrictions apply equally to all citizens. A heterosexual has no more "right" to marry a person of the same sex than a homosexual does. Therefore, homosexuals are not being deprived of the equal protection of the laws. I am unconvinced by arguments that sexual expression and fulfillment are absolute human rights (for example, what of pedophiles?), but even if one were to advance that argument, certainly legal marriage is not necessary for sexual expression and fulfillment.

Had it been simply an issue of obtaining the legal benefits of marriage, the Massachusetts Supreme Judicial Court could have ordered the creation of "civil unions," as Vermont and now New Jersey have done. But it explicitly ruled out this option, insisting on changing the definition of marriage.

Derek Charles Catsam - 7/14/2004

A court changing common law is not, in fact, an example of abuse of judicial power. Where do you get this from? And in any case, for those of us who see gay marriage as a matter of equal opportunity rights, the democratic argument does not work either. The majority of Mississippi citizens were more than happy to perpetuate jim crow. Certain things are beyond the scope of the majority's power. Fundamental rights are among them. Again: democratic republic, not simply a plebescite democracy.

Hans Vought - 7/14/2004

I have, indeed, read the opinion of the Supreme Judicial Court of Massachusetts. It explicitly acknowledges that it is changing the common law definition of marriage that has stood for centuries. "We are mindful that our decision marks a change in the history of our marriage law." It refuses to declare the Massachusetts marriage statutes unconstitutional, but nevertheless holds them void, and orders the legislature to change them. This is a clear example of abuse of judicial power, and it is clearly undemocratic.

Derek Charles Catsam - 7/14/2004

Chris --
I agree with you. One can rage against the machine and ask where in the Constitution it says that the courts can review, but Con Law folks very well know that not only the Constitution itself, but also Supreme Court decisions is what makes up "The Constitution" from a legal vantage point.
Further, "judicial activism" is a red herring -- I've said it elsewhere, but when people accuse the courts of "judicial activism" what they usually mean is "the courts doing stuff I disagree with." By the standards conservatives have historically applied to liberal courts, this court and especially its conservative judges may well be the most "activist" of all time. But again, that just means we disagree with what the court saydand need to dispute on the merits rather than throw this inherently political label out there.
Finally, while we value democracy, let's keep in mind that we are actually more properly categorized as a democratic republic in which we are represented by elected officials, but also by those that are appointed. The judiciary is appointed just like most of the Executive branch is. That is how the system is structured, and on the whole, it is not necessarily bad. I like the fact that the Supreme Court is immune from public passions so that it can make unpopular decisions that might well be right and proper.

chris l pettit - 7/14/2004

Marbury versus Madison...judicial review...came out of interpretation of the Constitution...strict constructionism is an ignorant and dangerous position...the Constitution was meant to be fluid, change with societal changes (called progress), and be interpreted by those who could understand it (presumably the Supreme Court justices...although I have my doubts due to their partisanship).

Of course the real problem is the political appointment regime that we have and the fact that ideologues from both sides are installed on partisan lines. Look at South Africa...judiciary is elected/appointed by a counsel representing most if not all sectors of society, and the Constitution requires the Constitutional COurt to be a protectorate of human rights. The gay marriage case is a slam dunk anywhere outside of the US and despotic Islamic "fundamentalist (read extremist) states. Not a surprise that we are the laughingstock of the international community in terms of this issue. I know it goes against my arrogant American exclusivism and belief that we are the chosen and most powerful people of the world and don't have to listen to anyone else, but maybe we should care what other more progressive peoples are doing, especially when a standard is universally accepted by most international and regional courts.

"activist" judges...what a red herring!! read the decision...there was no legislating that took place, just proper interpretation of the Constitution of the US, Massachusetts State Constitution and "gasp" Margaret Mitchell actually paid attention to international law, human rights, and what is universally accepted by most of humanity...gee what a concept. Wouldn't it be nice if Americans could come out of their self important, insulated, uncultured, ignorant shells and joined the rest of humanity for a change...


Marc "Adam Moshe" Bacharach - 7/13/2004

1) "Democracy means rule by the people (in practice, majority rule), either directly or through elected representatives."

I see your point and am often inclined to agree. Nevertheless, I include minority rights in my own understanding of democracy and that requires some form of counter-majoritarian institution, in our case, the courts. However, I must add that there is no shortage of decisions with which I wholly disagree with which I believe go counter to majority will. Perhaps the problem is one of court legitimacy and not necessarily the institution itself?

2) "Nowhere does the US Constitution grant the Supreme Court the power to declare federal laws unconstitutional, nor is there much evidence to suggest that most of the Framers ever intended it to have such power (the exception being crypto-monarchist Alexander Hamilton)."

Again, good point, although since the Federalist Papers are often used by almost everyone (laymen, politician, and academic alike), and was likely instrumental in soliciting support from the people of NY, it is not unfair to credit it with what the Founders intended. It should also be noted that both the chief executive as well as federal agencies have been granted, through history and through legislation, the ability to make laws (Emission standards, environmental protections, and executive orders all being a few examples).

3) "Of course, there is no bright, clear distinction between interpreting and making law."

And herein lies the problem. Interpretation is necessarily making the law. This was true in Brown v. Board just as surely as it was true in Bush v. Gore. I see no solution to this problem. Prevent the courts from making law, and all you would have done is left that discretion to local officials who are responsible for implementing the law, who may be no more democratic. To me, at least the current method is public and transparent, rather than hidden and too subtle to place accountability.

Courts will always bee political institutions and judges will always make the law through their interpretations. Sometimes we will agree and sometimes we will not, but with all of its faults, I see nothing undemocratic about the situation, particularly since the people could, if they chose, abolish the institutions tomorrow.

Hans Vought - 7/13/2004

I didn't say that it was unconstitutional for judges to make law, I said it was undemocratic. Democracy means rule by the people (in practice, majority rule), either directly or through elected representatives. Appointed judges are one of the undemocratic features of the US Constitution and most state constitutions. One cannot pretend that four judges appointed to life terms adequately represent the will of the people of the Commonwealth of Massachusetts.

However, there is a good argument to be made that judges making (as opposed to interpreting) laws is, in fact, unconstitutional as well as undemocratic. Article I, Section I of the US Constitution states, "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." Nowhere does the US Constitution grant the Supreme Court the power to declare federal laws unconstitutional, nor is there much evidence to suggest that most of the Framers ever intended it to have such power (the exception being crypto-monarchist Alexander Hamilton). The Supreme Court gave itself that power in Marbury v. Madison - and that in a case from which John Marshall ought to have recused himself.

Of course, there is no bright, clear distinction between interpreting and making law. But to interpret a law in a way totally contrary to what the people, acting through their elected representatives, intended is clearly undemocratic. You may like the result, but you can't pretend the action was democratic.

Furthermore, the practice is dangerous, because it can easily lead to abuse of power. The same practice was used by the US Supreme Court in the late 1800s to gut the 14th Amendment of its intended purpose: to protect the equal citizenship rights of African Americans. The end result was the 1896 Plessy v. Ferguson decision permitting racial segregation. Why did the justices blatantly misinterpret the US Constitution? Because they could.

Jonathan Dresner - 7/12/2004

Thanks for the reference. I've linked to it (as well as to my previous writings on the subject) at http://hnn.us/blogs/entries/6159.html

Marc "Adam Moshe" Bacharach - 7/12/2004

A few points about your post.
1) "However, I think that the 18th Amendment (that is, "Prohibition") is not entirely analogous to the current proposed amendment."

I agree that the two are not analogous, but I do not believe it was the intent of the author to analogize them in any way other than to suggest an example of how Constitutional Amendments can have unintended consequences, a point I believe that is fully justified in the article.

2) "Only one state (Mass.) has legally sanctioned homosexual marriage, and that by undemocratic means (four unelected state justices)."

I would argue that our system of judge-made law is as Constitutional as any other part of our government. While I am sure we all have decisions that we disagree with, it has been an American tradition that judges can make the law. If the people disagree with that law, they can simply legislate around the decision, contest the decision in a higher court, or pass an Amendment in the State Constitution, OR the federal Constitution. In short, there is nothing "undemocratic" about judges making law. Counter-majoritarian perhaps, but not undemocratic in my view.

3) "Secondly, the 18th Amendment was far more effective than it has generally been given credit for. It reduced alcohol consumption considerably, as well as alcohol-related crime, illness, injury and death."

I may agree with this contention with the caveat that while it did what it set out to do, the cost was far higher than anyone could have imagined. If I set out to end a nose-bleed, and I kill the patent, I may have accomplished what I wanted, but was it worth the price?

4) "It killed the 19th-century saloon, which preyed upon the working class. Nor can one fairly blame organized crime on Prohibition, as Al Capone and his ilk would've found other profitable, illegal activities to engage in instead. Indeed, had the federal and state governments ever bothered to fund and staff enforcement adequately, Prohibition probably would've been far more successful."

I disagree. The mafia had been in America for a long time before Prohibition, but never had there been a more lucrative outlet. The rapid rise in organized crime that occurred during that time, to me, more than justifies the claim that the one caused the other. Had the government funded it more, there would no doubt have been far more people in prison, far more police on the streets, and perhaps some kind of a police state, but a I ask above, would it have been worth the price?

5) "For another, to suggest that laws shouldn't be passed because some citizens would undoubtedly violate them is an argument for anarchy."

Your statement is quite correct, but frankly, I do not believe that the author makes any claim to the contrary anywhere in the article.

chris l pettit - 7/12/2004

As historians we all should read this commentary from the Guardian today:


As one with degrees in Comparative Religions as well as history and law, I must say that she is truly a brilliant scholar and is probably the brightest academic I have ever read on the topic of comparative religion. Christian "fundamentalists" (it should be extremists since their beliefs have nothing to do with the fundamentals of Christianity) would do well to heed the historical and religious lessons of her writings.


Hans Vought - 7/12/2004

Constitutional amendments may indeed have unintended consequences, and it is certain that they will not change some citizens' beliefs and practices - the Ku Klux Klan and other white supremacist organizations remain unconvinced by the 14th Amendment over 130 years later. However, I think that the 18th Amendment (that is, "Prohibition") is not entirely analogous to the current proposed amendment.

First of all, the 18th Amendment outlawed behavior that was (in some states, although less than half by 1918) legal and had widespread social and cultural legitimacy. The current amendment seeks to preserve the existing, longstanding legal, social and cultural definition of marriage. Only one state (Mass.) has legally sanctioned homosexual marriage, and that by undemocratic means (four unelected state justices).

Secondly, the 18th Amendment was far more effective than it has generally been given credit for. It reduced alcohol consumption considerably, as well as alcohol-related crime, illness, injury and death. It killed the 19th-century saloon, which preyed upon the working class. Nor can one fairly blame organized crime on Prohibition, as Al Capone and his ilk would've found other profitable, illegal activities to engage in instead. Indeed, had the federal and state governments ever bothered to fund and staff enforcement adequately, Prohibition probably would've been far more successful.

The real unintended consequence of the 18th Amendment was the Volstead Act, a classic example of legislative bait-and-switch. While the 18th Amendment banned the manufacture and sale of "intoxicating liquors," which referred only to distilled liquor (as in the 19th-century "Maine Laws"), the Volstead Act banned any beverage with more than 0.5% alcohol, thus barring beer and wine, too. Had the original intent of the amendment been maintained, its popularity (it was ratified by 46 out of the 48 states with an average approval over 80%) might well have endured.

While Professor Kyvig's caution about the unintended consequences of a constitutional amendment is well taken, his final assertion that the proposed amendment might ironically undermine public support for marriage is absurd on it's face. For one thing, the trend toward couples living together out of wedlock is well-established, and thus has no causal relationship with government limits on the legal institution of marriage. For another, to suggest that laws shouldn't be passed because some citizens would undoubtedly violate them is an argument for anarchy. Laws against killing other people do not prevent murders - should we therefore repeal the legal definitions of murder, homicide and manslaughter? People routinely violate speed limits - does that make them unwise laws? The old chestnut that "you can't legislate morality" is nonsense. All legal systems are based on moral codes. The only question is, on whose moral code shall it be based?