If Republicans, supporting traditional marriage, keep the White House and increase their legislative advantage, important judicial consequences would follow. The late constitutional scholar Alexander Bickel taught that constitutional interpretation is a kind of colloquy among the three branches. When the judiciary veers too far from the common sense of the Constitution, the other branches open a conversation with the judges.
We badly need a colloquy like this today. Historical precedents suggest the justices might not disregard a clear assertion of legislative will on such a basic issue. Neither a weak "sense of Congress" resolution nor a fanciful constitutional amendment that will be dead on arrival can do much to advance this conversation. Enforceable law is Congress' authoritative means to voice its position. With an election mandate to protect the marriage privilege, Congress and the White House would give the high court incentives and an opportunity to rethink its agenda. Should the justices persist, the conflict will intensify, not go away. A constitutional crisis--much like the New Deal crisis--would be almost inevitable.
Those who favor a constitutional amendment to protect marriage object to ordinary legislation, claiming the Supreme Court will certainly strike down a federal statute. President Franklin Roosevelt gave this classic response to such arguments:
[There are] those who honestly believe the amendment process is the best and who would be willing to support a reasonable amendment if they could agree on one. To them I say: we cannot rely on an amendment as the immediate or only answer to our present difficulties. When the time comes for action, you will find that many of those who pretend to support you will sabotage any constructive amendment which is proposed. . . . Even if an amendment were passed, and even if in the years to come it were to be ratified, its meaning would depend upon the kind of justices who would be sitting on the Supreme Court bench. An amendment, like the rest of the Constitution, is what the justices say it is rather than what its framers or you might hope it is.
Changes in the Constitution never happen merely because voters are angry. The Framers designed the process to insure that momentary passions don't damage a Constitution that must endure for centuries. Amendments are possible when the political conflict is over and a consensus is established. Losing a fight over the FMA, which is virtually certain, will only give ammunition to those who would claim popular support for same-sex marriage. Enacting a marriage privilege protection law can advance the effort to forge a consensus that will preserve marriage and constitutional republicanism.
Dennis Teti is a writer who lives in Hyattsville, Maryland, who has taught political philosophy and constitutional law.
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