Jewish World Review March 1, 2004 / 8 Adar, 5764

Jack Kelly

Jack Kelly
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Selective outrage | It says something interesting about contemporary culture (or at least about the news media) that many in the news media are disturbed by a film that faithfully depicts the Gospel accounts of the trial and crucificixion of Jesus Christ, but not when the mayor of San Francisco — in defiance of state law and the recently expressed will of more than 60 percent of California's voters — issues marriage licenses to same-sex couples.

Traditional values in America are under relentless attack, and they are being undermined by undemocratic means.

The gay marriage controversy exploded when the Supreme Judicial Court of Massachusetts, by a 4-3 decision, ordered the Massachusetts Legislature to rewrite the state's marriage laws. The decision caused nationwide concern, because it is feared that under the "full faith and credit" provision in the Constitution, gay marriages performed in Massachusetts may have to be recognized by other states, despite their own laws to the contrary.

After Vermont permitted civil unions for gay couples, Congress passed the Defense of Marriage Act (DOMA) which says that no state is compelled to recognize gay marriages authorized by another. But many fear judges determined to impose their own version of morality will simply declare DOMA unconstitutional.

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In order to prevent that, President Bush has endorsed an amendment to the Constitution that would define marriage as a union between a man and a woman. His position is, in my judgment, flawed.

The key flaw is that Bush's amendment doesn't address the core problem — an unelected judiciary is running roughshod over the plain meaning of the Constitution, substituting its views for those of the framers and a majority of citizens. In the unlikely event that the marriage amendment were successful, judicial overreach would be blocked in this area. But the basic problem would persist.

A related flaw is that Bush proposes to put a public policy into the Constitution. All previous successful amendments have been structural. This is as it should be. Policies change over time, but the Constitution is supposed to be timeless.

The best solution is to appoint judges to the federal bench who respect the Constitution. But the extent to which judges have not indicates that an amendment is required to correct an oversight of the Founding Fathers. They failed to provide a mechanism for resolving disputes in constitutional interpretation among the three separate, but equal, branches of the federal government.

The trouble is that the combination of judicial review (a power not found in the Constitution, but asserted by Chief Justice John Marshall in Marbury vs. Madison) with lifetime tenure for judges has set the stage for judicial tyranny. This problem could be corrected by one of two structural reforms, or perhaps both.

First, amend the Constitution to end life tenure for federal judges. Judges would be appointed instead for, say, 9-year terms. Judges could serve for more than one term, but would have to be nominated again by the president, and confirmed again by the Senate. This would provide a measure of accountability that now is lacking, and make judges less willing to embrace radical positions.

Second, it's often been said that "the highest court in the land is the court of public opinion." This isn't true, but suppose it were. Suppose we amended the Constitution to provide that if the president (by proclamation) and the Congress (by joint resolution) disagree with a ruling of the Supreme Court, the matter will be put before the voters in the next general election, with a "yes" vote sustaining the ruling of the Court, and a "no" vote overturning it.

Because both the president and Congress would have to dispute a Supreme Court ruling for it to go to the people, this wouldn't happen often. But this procedure would guarantee that the most important questions in our society would be settled by democratic means, not by judicial fiat.

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JWR contributor Jack Kelly, a former Marine and Green Beret, was a deputy assistant secretary of the Air Force in the Reagan administration. Comment by clicking here.

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© 2003, Jack Kelly