Fisking time

Bush: “Today I call upon the Congress to promptly pass, and to send to the states for ratification, an amendment to our Constitution defining and protecting marriage as a union of man and woman as husband and wife. The amendment should fully protect marriage, while leaving the state legislatures free to make their own choices in defining legal arrangements other than marriage.”

The NYTimes Wednesday lead editorial, "Putting Bias in the Constitution:

“With his re-election campaign barely started and his conservative base already demanding tribute,”

Like immigration reform, NASA expenditures, etc.

“…President Bush proposes to radically rewrite the Constitution.”

By eliminating separation of powers, or perhaps overturning federalism? I’m expecting something significant from a ‘radical rewrite.’ If a mere tidying up of whether judges or states gets to decide policy in one specific area counts, then Roe v. Wade certainly counts as a radical rewrite, but we don’t hear the Times criticizing that.

“The amendment he announced support for yesterday could not only keep gay couples from marrying, as he maintains, but could also threaten the basic legal protections gay Americans have won in recent years.”

Such as? The right to marry others of the same gender? That’s not available anywhere in the US right now (it will likely be in Massachusetts come May, and you can get a worthless license in SF, but that’s it). It’s hard to see how Bush’s proposed amendment limits any existing rights—it prevents judges from creating new ones, while leaving that option to legislatures.

“It would inject meanspiritedness and exclusion into the document embodying our highest principles and aspirations.”

So if the Times thinks something is ‘meanspirited,’ (with no real evidence offered), it clearly must not become public policy. Whatever. Meanspiritedness seems beyond the reach of some of us mere mortals to judge, but certain constitutional provisions are certainly ‘exclusive’ by any reasonable definition. The elimination of the right of voters to elect a president who has already served two terms (22nd Amendment), or the removal of the ability of the Supreme Court to hear certain types of cases (11th Amendment), or provisions limiting who may serve in various offices, and so forth. If we’re crusading against exclusion in the Constitution, it looks like we’ll need a ‘radical rewrite.’

“If Mr. Bush had been acting as a president yesterday, rather than a presidential candidate, he would have tried to guide the nation on the divisive question of what rights gay Americans have.”

Perhaps by redirecting the debate from unelected judges to elected legislatures? No, too obvious. Evidently, the Times wanted him to tell the nation that the judges were right and to stop whining about it already. That’s leadership, after all (under the Orwellian definitions in use at the Times).

“Across the nation, elected officials and others have been weighing in on whether they believe gays should be allowed to marry, have civil unions, adopt, visit their partners in hospitals and be free from employment discrimination.”

Yes. The elected officials weigh in, and the ‘others’ (judges) throw out their decisions when they don’t come to the proper liberal conclusions. “Democracy” in action.

“Except for a throwaway line about proceeding with "kindness and good will and decency," the president's speech was a call for taking rights away from gay Americans.”

Obviously this was a throwaway line, because if he’d meant it, the cognitive dissonance would have caused the Times’ editors’ heads to explode. For ‘taking rights away,’ see above.

“President Bush's studied unwillingness to talk about the rights gay people do have is particularly significant given the wording of the Federal Marriage Amendment now pending in Congress. It calls for denying same-sex couples not only marriage, but also its "legal incidents." It could well be used to deny gay couples even economic benefits, which are now widely recognized by cities, states and corporations. Such an amendment could radically roll back the rights of millions of Americans.”

Truth alert! Bush didn’t endorse the FMA.
Truth alert II! The FMA actually says "Marriage in the United States shall consist only of the union of a man and a woman. Neither this constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups." Thus, according to the Times, not requiring something is equivalent to denying it. Prohibiting judges from ordering the government to do something is the same as empowering judges to tell corporations not to do something. The logic here is dizzying.
Of course, it’s possible that the Times was referring to some discussion (on blogs such as the Volokh Conspiracy) of whether a judge might deliberately misread the intent of the statute to deny civil-union type benefits. Such discussion, as far as I can tell, is centered around possibilities, not probabilities. Perhaps the Times neglected to elaborate because a thorough discussion of judicial discretion, the composition of the courts, and the practice of ignoring the plain meaning of the Constitution might remind people just who is more likely to engage in such manipulative behavior when it suits their ends.

“In his remarks yesterday, President Bush tried to create a sense of crisis. He talked of the highest Massachusetts court's recognition of gay marriage, San Francisco officials' decision to grant marriage licenses to gay couples and a New Mexico county's doing the same thing. He did not say the New Mexico attorney general found that gay marriages violate state law, the California attorney general is asking the California Supreme Court to review San Francisco's actions, and Massachusetts is considering amending its State Constitution to prohibit gay marriage. The president, who believes so strongly in states' rights in other contexts, should let the states do their jobs and work out their marriage laws before resorting to a constitutional amendment.”

In other words, let us change the status quo, have the advantage of a new status quo for several years, and then come back with your radical plans for change. Does anyone seriously think the Times is going to react to a Supreme Court strikedown of the DOMA by editorializing “oops, you were right after all. We’d better amend the Constitution so each state can work this out for itself?”

“The Constitution has been amended over the years to bring women, blacks and young people into fuller citizenship.”

If by ‘fuller citizenship,’ we mean giving the right to vote (in the first and third case). The second case is interesting, in that the citizenship-granting amendment (14th) was egregiously misread by the Supreme Court almost immediately after ratification, bringing us back to the problem of judicial discretion to ignore the intended meaning of a text. In any event, voting rights and marriage statutes are quite different.

“President Bush's amendment would be the first adopted to stigmatize and exclude a group of Americans.”

Truth Alert: The 22nd Amendment stigmatizes and excludes former two-term presidents. Even the liberal hero Bill Clinton has been whining about being excluded by it. Plenty of other amendments are ‘stigmatizing’ as well, by the logic that if someone is offended, offense must have been meant. Members of Congress are stigmatized as greedy and unscrupulous by the 27th Amendment. Southern politicians are stigmatized as racists by the 24th Amendment. Alcohol manufacturers and drinkers likely felt stigmatized by the 18th amendment, as with prohibitionists and the 21st. State legislatures could easily feel excluded by the 17th Amendment, and slaveowners have certainly been stigmatized since the adoption of the 13th. Of course, a more levelheaded person might realize that if there is a problem so fundamental that it requires a Constitutional amendment, someone is going to disagree with someone else and be ‘stigmatized’ by the eventual result. “Stigmatization” and “exclusion” are code words for “if you don’t agree, you must be a bigot,” not any attempt at rational analysis.

“Polls show that while a majority of Americans oppose gay marriage, many would prefer to allow the states to resolve the issue rather than adopting a constitutional amendment.”

And polls are a relevant argument because? The President should be completely poll driven? Or is it just that polls should be followed when the Times agrees with the people, and ignored as the whims of the uneducated masses when it doesn’t? In any event, after a public discussion of the tradeoffs and benefits of amending the Constitution, Americans will participate in the most significant series of public opinion polls when they go to the real polls for the election.

“They understand what President Bush does not: the Constitution is too important to be folded, spindled or mutilated for political gain.”

Putting aside the assumption that political gain flows to Bush from this, let’s analyze the implications. Both parties should stop playing politics with judicial nominations (remind me again who the worst offenders have been lately). The Supreme Court should reverse some of its ‘constitution-mutilating’ decisions and return power to elected legislatures rather than rewriting the Constitution to achieve policy goals. And perhaps the New York Times should stop editorializing about how it wants the Supreme Court to rule on pending cases, since the monolithic Constitution is clearly so clear that no politician or interest group should ever sully it by questioning its provisions or their interpretations (after all, if there’s one clear right answer, there’s no need to discuss it). That is, if we’re serious about taking the Constitution seriously and never using it for political gain.