Republican presidential candidate and federalist extraordinaire Rick Perry, after initially stating same sex marriage and abortion were states’ rights issues, came out for a federal marriage amendment and a human life amendment. USA Today’s Catalina Camia quipped, “Texas Gov. Rick Perry says he’s a big believer in states’ rights, but apparently the potential GOP presidential candidate believes there should be exceptions.”
Indeed, most conservatives would agree that the Constitution leaves abortion and same sex marriage up to the states. Some of these same social conservatives also favor deciding abortion and same sex marriage on the national level. What is the difference between them and social liberals who want those issues decided at the national level?
For many advocates of federalism such as columnist Steven Chapman, there is none. True support of federalism requires that the rights of states be upheld “even when it yields unpalatable outcomes.”
Yet this argument ignores Article V of the Constitution, in which the Founding Fathers laid out the process for amending the Constitution. They knew they could not anticipate every issue that might come up and they were also aware of their own flaws. For example, many of the Founders who were concerned over slavery thought they’d made a mistake in capitulating to slaver owners in order to get the constitution ratified, and the process was left open for the Constitution to be amended.
Social conservatives who seek to amend the Constitution are respecting the Constitution’s legal amending process to address unforeseen issues. This goal requires a commitment to obtaining the support of two thirds of Congress. Any attempt to set national policy on these issues through the Constitution also requires the assent of the legislatures of thirty-eight states. This is an arduous task. Some would say it is even impossible.
Meanwhile, the left has chosen the easier path. They treat the Supreme Court like it’s an oligarchy, forcing national solutions by judicial fiat. Liberals read the U.S. Constitution the way they do religious texts, reinterpreting it to suit their ideology. In the Goodridge ruling, the Massachusetts Supreme Court declared that the Commonwealth’s 200 year old Constitution required the recognition of same sex marriages. Harry Blackmun asserted in Roe v. Wade that not only could a right of a woman to have an abortion be found in the Fourteenth Amendment, but that trimester-by-trimester rules and restrictions could also be divined and enforced upon the states.
Thus, on these controversial issues, social conservative activists submit to the Constitution’s amendment processes while social liberal activists usurp them. It should be noted that there are other cultural issues that don’t cause social conservatives to push for a constitutional amendment. For example, in parts of Nevada, prostitution is legal. Most social conservatives take issue with the lottery and other forms of gambling. In these cases, states have produced results that social conservatives may consider “unpalatable” but the decisions were made through the democratic process and can be changed through it. In addition, there has been no effort to universalize these issues through the court system.
The Constitution should not be used as a device for general legislation. However, there are times when certain issues can only be resolved through the amendment process. Such was the case with slavery, guaranteeing equal rights for minorities, and voting rights for women. In these cases, the Constitution was changed, with the consent of 3/4 of the states, to address a fundamental issue.
Some problems cannot simply rest as a question of local discretion. In Abraham Lincoln’s famous “House Divided” speech, he declared, “I believe this government cannot endure, permanently, half slave and half free.”
Abortion and marriage are of similar cultural importance. They must be settled for us to remain one nation. While states can have different speed limits and different tax systems, we cannot hope to remain a united country if one state views an action as barbaric murder while its neighbor views it as a surgical procedure similar to having a tooth pulled. Since these issues must be settled once and for all, preserving American liberty requires this be done in a democratic way rather than in a dictatorial way.
Liberal activists will never actually let these be states’ issues. It was pro-abortion rights activists who led the charge to nationalize the abortion issue through Roe, not pro-lifers. If Roe were overturned and pro-life activists retired at the federal level, it would only be a matter of time before the left obtained a majority on the Supreme Court and issued a new version of Roe. The belief that returning these issues to the states will be met by a shrug of acceptance from the abortion rights lobby is out of touch with reality and ignores the massive efforts that have been put into maintain Roe for forty years.
Immediate prospects for passage of either amendment are non-existent. However, social conservatives are right to have these as long-term goals, as this is the only way they can achieve ultimate success.