Alexander's Column

The FMA: Why Amend the Constitution?

Mark Alexander · Jul. 16, 2004

There was much pontification this week among the Beltway chattering class, and it centered on the 50-48 Senate vote to support a filibuster against a floor vote on the Federal Marriage Amendment. Alas, the FMA – that proposed constitutional amendment purporting to establish the legal definition of marriage as it has long been instituted by God and nature, not to mention common sense – had failed to even get off the ground.

The FMA states: “Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman.”

Despite the amendment’s simple language, a floor vote would likely have fallen well short of the two-thirds majority needed to send the FMA to the states for ratification. But that has not silenced proponents of the FMA who characterize the whole issue as a “national crisis.”

Indeed, there is a national crisis, but it is not confined to the definition of marriage. Rather, it represents the larger scope of the Leftjudicial assault on our national and state constitutions – an assault that has penetrated so far into the heart of our republic that the mere determination of what constitutes an institution as fundamental as “marriage” must now be constitutionally defined.

Ironically, the judicial mischief undermining marriage, which inspired the FMA’s proposition, is also its “Achilles’ heel.” Why amend what’s left of our much-maligned Constitution when the Leftjudiciary – that cadre of judicial activists bent on amending the Constitution by judicial diktat – would simply twist the FMA by “interpretation” into whatever shape they, and their ilk, desired. (The Defense of Marriage Act, overwhelmingly passed into law in 1996, has provided no gauntlet against judicial activists.)

Sadly, our constitutional Republic as envisioned by our Founders – a government “to … establish Justice” – has devolved into little more than a system of government by judicial decree. Imagine the audacity of our Founders – who expected judges to honor our Constitution; to be constitutional constructionists bound by the letter of that venerable document and its proper amendments; and to be accountable to the law as written, not interpreted as if they had, themselves, written it.

To be sure, such interpretative mutilation of the Constitution is in clear violation of the original intent of our Founders. This becomes painfully clear upon examining the most definitive explication of the Constitution itself, The Federalist Papers.

The Federalist Papers, authored by Founders James Madison (who drafted the Constitution), John Jay and Alexander Hamilton, were and remain lucid about the proper role of the judiciary. Indeed, they had to be, because the method by which the Constitution of the United States was to be interpreted was one of the most pressing obstacles to its ratification. The concern among constitutional opponents was that the document gave the judiciary the power to interpret the laws according to the spirit of the Constitution, which, as they said, would “enable that court to mold the laws into whatever shape it may think proper, especially as its decisions will not be in any manner subject to the revision or correction of the legislature.”

“This,” said The Federalist authors, “was as unprecedented as it was dangerous.” Continuing, “There is not a syllable in the plan…which directly empowers the national courts to construe the laws according to the spirit of the Constitution.” (Federalist No. 81)

But Thomas Jefferson realized that even given the clear restraints on judicial activism, the federal bench would eventually devolve into a political forum for the expression of group ideology. Jefferson, in fact, warned of the potential tyranny of the “despotic branch”: “Over the Judiciary department, the Constitution [has] deprived [the people] of their control. … The original error [was in] establishing a judiciary independent of the nation, and which, from the citadel of the law, can turn its guns on those they were meant to defend, and control and fashion their proceedings to its own will. … The opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch. … It is a misnomer to call a government republican in which a branch of the supreme power [the judiciary] is independent of the nation. … It has long, however, been my opinion, and I have never shrunk from its expression…that the germ of dissolution of our federal government is in the constitution of the federal Judiciary; working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped.”

Indeed, virtually all has been usurped. Jefferson, in his great wisdom, knew that human nature being what it is, federal judges would eventually abandon the plain language of the Constitution in favor of their own interpretations. Thus, the FMA, should it ever pass and be ratified, would do little more than bandage a lesion on a body already consumed with cancer.

In short, the real crisis in America is the undermining of our Constitution by the “despotic branch.” Accordingly, then, the only constitutional amendment we should be considering is one that addresses judicial activism. For that reason, please devote your attention to “The Enumerated Powers Amendment” (inspired by the “Enumerated Powers Act” now before Congress). This Amendment mandates that our Constitution and its amendments be construed in the national courts according to its “original intent.” Significantly, this Amendment calls on the House of Representatives to remove from office, by majority vote, any judge not in compliance with a strict adherence to the letter of our Constitution.

Quote of the week…

“I am deeply disappointed that the effort to pass a constitutional amendment affirming the sanctity of marriage as being between a man and a woman was temporarily blocked in the Senate. Activist judges and local officials in some parts of the country are not letting up in their efforts to redefine marriage for the rest of America – and neither should defenders of traditional marriage flag in their efforts.” –President George W. Bush

Open query…

“Will activist judges not elected by the American people destroy the institution of marriage, or will the people protect marriage as the best way to raise children? My vote is with the people.” –Senator Bill Frist