Marriage licenses are the purview of the States. However, the Supreme Court ruling Friday overturned the constitutions of thirty states and imposed its will on all fifty. This is yet another huge precedent for overruling state law.
So is a marriage amendment proposed by either Congress or the States using Article V of the U.S. Constitution, as one candidate has suggested, the answer? Not likely. More and more Americans are realizing that using the force of the federal government is too big of a hammer, and in fact only serves to consolidate power further in Washington. Amendments should limit the power of the federal government, not expand it.
Let’s define our terms more precisely: Usually when we talk about legislating from the bench, we are talking about how the Supreme Court redefines, rewords, and “fills in the blanks” the laws Congress has passed. However, Friday’s ruling actually seized power from the states (as it did with Roe v. Wade in 1971). The fact that five unelected people have that much power should frighten everyone, regardless of where we may stand on the issues.
We have to think this through, and be both logical and consistent. A top-down approach using the federal government and our Constitution to impose policy preferences issue-by-issue in an attempt to micromanage citizen behavior from Washington is a losing proposition. Besides (if we put on our tin-foil caps for a second), what will happen when a global government supplants the one in Washington? Will we then expect to gain enough support world-wide for global amendments stipulating how our local governments must act?
We need a different approach. Return governing power to the States, and allow the people of those states to make and live with their own decisions (under the federal and state constitutions, and under the rule of law). Local power is more nimble and representative of the people by definition because it is more accountable. This is quintessential federalism.
Again, we have to step back to see the bigger picture and change our strategy. Our answers do not lie in Washington.
The amendments process as outlined in Article V of the U.S. Constitution should not be used lightly or in a knee-jerk fashion. Furthermore, Congress and the States need to be consistent. That is, they should only propose amendments that limit the power of the federal government (think more along the lines of the Bill of Rights, which protect individual and states’ rights).
A retention amendment proposed by another candidate would fit this definition, as would amendments allowing Congress or the state legislatures to override unpopular Supreme Court decisions with a three-fifths super-majority and term-limiting appellate and Supreme Court judges.
Amendments to the U.S. Constitution should not generally be used for lawmaking or specific policy items. That is the purview of the federal and state legislatures.