Okay, so the legal commentators are all still spinning over the decision by the Massachussetts Supreme Court last month to allow same-sex marriages in the former stomping ground of Puritans. There seems--from what I can tell--to be a general consensus regarding the implications of this decision for the rest of the country. The relevant bit of the Constitution in this case seems to be Article IV, Section 1, which reads as follows:
Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.
So, see, if same-sex couples go to the old Massuchussetts Bay Colony to get hitched, then all 49 of the other states would be required to honor that marriage. South Carolina will have to recognize the couple as married, since the Massachusetts recognizes them as married.
The connection between Massachussetts and Purtianism is, it so happens, rather interesting. First of all, it has to be said that the Puritans were in reality a quite diverse group of folks, and most of their modern rapsheet is a pile of lies and slanders. The actual demeanor of most Puritans was quite jovial and worldly (in the good sense), which is precisely the opposite of their reputation. C.S. Lewis has Uncle Screwtape comment that one of the greatest works "our father" [i.e. the Devil for Screwtape] has pulled off in this modern age is the complete debasement of the word 'puritan.'
Still, it is somewhat inescapable that the
New England Puritans tended to be the wackier members of the herd. These tended to be the more rigid separatists, many of whom had failed to make a go of it not only in the Church of England but in Holland as well. So it might be fair to say that priorities in 17th century Massachussetts were sometimes a bit upside-down, no matter what Puritans elsewhere in the world were like. Purity at all costs, and a willingness to make our vision everyone's vision, etc.--these elements of today's common thinking about the Puritans is somewhat accurate, at least as far as the New England variety was concerned.
New England Puritanism faded away by the early 19th century, but this "puritanical" spirit remained with us, especially in New England. New Englanders didn't lose thier obsession with collective purity when they made the tragic switch from Calvinism to Unitarianism; they just transferred the location of the obsession from the church to the nation-state. As the ecclesiastical institution (the Church) was reduced under Unitarianism to little more than a social club intended to reinforce the latest romanticism, the civil institution (the guv'ment) grew into the new primary source of change and reform.
And so we had foisted upon us those two nasty 19th century agents of centralization and increased government power--manifest destiny and abolitionism. We needed a strong government to enable us to take over the entire continent and to help us purge the great remaining evil (slavery, or perhaps just the South itself) from our midst. Both of these sentiments were dominant in New England (though manifest destiny certainly found support in the South as well).
In those days, of course, the Constitution was an inconvenience to the imperialists. It has all those pesky limitations in it. Plus, those stubborn courts were always refusing to let the New Englanders do what they were sure needed to be done. Interestingly, the "full faith and credit" clause played an enormous role in frustrating our northeastern brethren in those days. The "fugitive slave law," upheld by Taney's Supreme Court, required all northern states (even states that had outlawed slavery) to return any runaway slaves to their masters. And so it was that North Carolina and Georgia exercised some brief control over Massachussetts and Connecticut. But this order was not to last, and the War Between the States turned it all around and gave the New England post-Puritans what they had been wanting: a "pure" nation purged of the evils of slavery and united from sea to shining sea.
Today, we don't have fugitive slave laws, but we are soon going to have "Homosexual Marraige" laws. And these, presumably, will be enforced upon all 50 states in much the same way that the Fugitive Slave Law once was--all shall have to comply out of "full faith and credit." The puritans of New England are still getting their way, after all these years.
What is really interesting, though, is how unjust the "full faith and credit" clause seems upon reflection. It unjustly required northerners to return slaves to their owners in the 19th century, and in our century it will unjustly require Bible-belters to support with their tax dollars marriages with which they do not agree.
But it cannot be denied that this clause is in the Constitution. I absolutely think that Justice Taney's Court was correct when they applied it to slaves in the 19th century, and Rehnquist's Court would be correct to apply it to same-sex marriages today. We strict contructionists cannot switch allegiances when the Constitution says something we don't like. So let it be said clearly: on Constitutional grounds, the full faith and credit policy is clearly justified, because it is contained explicitly in the Constitution itself.
But the Constiution is not the ultimate authority in the world. It is not a divine document. Neither Madison nor Hamilton played a very good Moses. Paleo-conservatives like myself think our country would benefit greatly if we returned to governing in accordance with the Constitution, but that's not the same thing as saying that the Constitution is perfect. (Weirdly, this is the opposite of what people of "lefter" persuasions do with the Constitution. The "living document" crowd breathlessly sings its praises as though it is the greatest political accomplishment in the history of mankind, and as though its ratification was attended by cherubim and seraphim. But then they govern as though they've never actually read it. For people like me, it is a flawed document that we would greatly benefit from following.) So what do we make of that darn "full faith and credit clause?" I would like to suggest that it should be seen as just one more piece of evidence that the anti-federalists were, in fact, correct. The Constitution, as it was originally written, is a flawed document that contains ample loopholes for a return to tyranny.
Sure, we would have more genuine liberty and cultural vitality if the government were scaled back to the limits imposed upon it by the Constitution. But we would have even
more liberty if we peeled off even a few extra layers and returned to the Articles of Confederation.
But the entire problem doesn't lie with the flawed wording of the Constitution itself. We cannot neglect the role fragmentation has played in all of this. Despite the blasphemous Pledge of Allegiance which says we are
indivisible, and despite Lincoln's best efforts to actually make us so, the fact remains that the United States today is more fractured than ever. We are no longer a melting pot of cultures, but rather a holding cell for all the different subgroups that want to control the process. And some of these groups are getting restless, or at least they will before long.
So this is the other flaw with our glorious Constitution, in addition to its aforementioned verbal loopholes that are easily made to support tyranny. Even if it's words were perfectly expressed, those words themselves still flow out of a late 18th century European optimism that fades away in the face of the social fragmentation of the 20th century and beyond. The Constitution ultimately was written by men who were united by western, Christian culture. These men did not foresee the subcultural kaleidescope that has exploded today. Provisions like a "full faith and credit" clause only work if all the individual states are truly operating under similar fundamental assumptions about the role of government and the nature and definitions of basic social institutions (like, say, marriage). But they aren't, and so it doesn't.
In the 1850s, many saw slavery as a horrendous evil that should be opposed at all costs. Others saw it as a positive good, the cornerstone of all civilizations. And many fell somewhere in between. This allowed us the first glimpse of what the "full faith and credit" clause can do. Alabama defined a slave as property, so Illinois had to honor that law no matter how much the Illini disagreed. Everyone knows that I'm on the South's side in the whole War Between the States thing, speaking generally. But I do believe that the imposition of the Fugitive Slave Law upon northern states was an unjust situation. Yet it was preciesly what the Constitution demanded.
And so it will be when same-sex marriages are foisted upon us from sea to shining sea, from Virginia to California, from Minnesota to Louisiania. This will all happen because one state has decided to pull a switch on traditional notions of marriage. These new marriages will be forced upon everyone, and the Constitution will
demand that this be so.
What will be interesting to see is how conservatives in the various states argue against this when it comes to their borders. Will they vainly appeal to the Constitution, which is actually against them? Or will they instead admit that they disagree with the Constitution on this point, and argue on the basis of natural/divine law instead? The problem with this second option is the anti-revolutionary spirit of genuine conservatism. If the Constitution really supports full faith and credit, and if the Constitution really is the law of the land, then as long as the Constitution stays the same, we generally have only two conservative options: obey the law, or disobey
but accept the punishment. We don't break the law and go hide in the mountains to build support for our revolution, nor do we break the law and then hope for a jury nullification at trial. We simply admit that we broke the law, and take the punishment that the state sees fit to give. If people can break the societal law and get away with it whenever it happens to contradict their understanding of higher/natural law, then there really
is no societal law. Obviously, a just society should always strive to line its laws up with God's laws, but the fact remains that this will always be an imperfect attempt. And those who disagree with the law have every right to argue for reform, but as long as it is the law they must submit or accept the punishment for lack of submission. (There are extreme exceptions to this, perhaps, but surely same-sex marriages isn't one of them.)
So, what option is left for conservatives who want to oppose same-sex marriages in their state? Clearly the Constitution itself must be changed. This is in fact what many conservatives-of-sorts are advocating when they propose a constitutional amendment that defines marriage as one man, one woman. No! This "solution" is just short-sighted reactionism, and it is worse than the problem. The answer is not to change the Constitution so that the federal government will impose
our vision of marriage on everyone (including those in Massachussetts). This is, among other things, a violation of the Golden Rule. The states need more
independence from federal intervention, as any genuine conservatism must affirm. A constitutional amendment defining marriage along traditional lines and forced upon everyone in the country whether they like it or not is a definite step in the wrong direction.
So what is left for conservatives to do? The Constitution must indeed be changed, but the change must be a negative one. We do not need an amendment that
adds a traditional definition of marriage to the Constitution. Instead, the only amendment that will do is one that
repeals the full faith and credit clause of the original Constitution. Well, that may be overboard (see Charle's first four comments below), but at least give Article IV Section I a serious rewording. With this clause removed or reworked the Courts would presumably have no Constitutional grounds for forcing Tennessee to accept Massuchessetts marriages. (This doesn't mean that leftist judges won't still find a way to pull it off, of course, but we can only consider one problem at a time! If we're talking about all the Constitutional problems that need resolving, then we could be here a while. Since you asked, we should also repeal or severely reword the governmental power of "eminent domain," we should repeal the 13th and 14th Amendments and then reinstitute them in a drastically reworked form, we should repeal the direct election of senators, and we should go back to having the vice president be whoever got the second-most electoral votes in the election. Oh, and we should also do whatever we must to scale back "judicial supremacy" and "judicial review" as it is currently conceived, though those things are not actually in the Constitution anyway. See, we can't do everything at once!)
The problem is that so many conservatives have calcified with their finger on the pro-Constitution button, as though everything would be dandy if only those activist judges would stop misinterpreting the Constitution. But in
this particular battle against modern state encroachment into the decentralized (i.e. free) life, the Constitution is on "their" side, not ours. So we must change the Constitution, and we must say so openly and without apology.
Of course, pulling this off would be incredibly difficult. But the only other option is secession, and that clearly isn't an option (nor would it really be a "proportional" response to the problem of same-sex marriages).
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