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"Indeed, the rage of theorists to make constitutions a vehicle for the conveyance of their own crude, and visionary aphorisms of government, requires to be guarded against with the most unceasing vigilance."
     -- Joseph Story
     Commentaries on the Constitution of the United States
     Book III, § 1857.

Saturday, June 21, 2003

General thoughts on the subject of gay marriage, with a major tangent heading off thataway. There has been a lot of crowing about the decision out of Canada, from a lot of persons who ought to know better. My suspicion is that they do know better, but more on that in a bit.

I've been playing around for a while -- though not in this context -- with the idea of reviving the old common-law crime of praemunire. Given the overall topic, there is no particular reason to mention this now, other than, well, it's been on my mind on and off quite a bit lately, and any excuse will do. OK, praemunire. Sorry, that's all the name it has, and the name itself is overworked. It stood for four different things: first, the writ whereby proceedings against the crime were commenced (which began, in law-latin, with the words "praemunire facias" -- "forewarn [him] to appear" -- thus giving the name, never mind that it otherwise doesn't make any sense at all); second, the crime itself ("The facts will plainly show that the prisoner forewarned"); third, the punishment imposed for that crime ("You are sentenced to a severe forewarning"); and fourth, an overflowing garbage pail of other criminal acts, a great many of them bearing no relation at all to the original crime, but which were directed by law to be punished in the same way ("... shall incur all the penalties of a forewarning"). All this forewarning sounds a lot like the United Nations, huh? Actually, the context isn't all that far off. The original crime which went by the name of praemunire was: the procuring, or attempting to procure, foreign legal process intended to have effect domestically. Its punishment, in brief, is best described as, "everything that can be inflicted, short of death." Its principal use was as a potent weapon in the arsenal of the Crown of England in its centuries-long battle of wills with the See of Rome, which culminated in the Anglican Schism: Papal pretenses to legal authority over the Crown or its subjects were neatly short-circuited, since any attempt to call upon that pretended jurisdiction, or to enforce its decrees, was itself a highly criminal act.

As I said, I've been thinking about it for a while, but not in the context of gay marriage. What I had in mind were such things as the International Criminal Court, the Belgian pretense to world rule, and the like: the "international law" orgy which has lately been going far out of its way to cause as much trouble as it can think up. In a legal atmosphere in which no one seriously pretends that a foreign jurisdiction can pass upon domestic matters, there is no need for a crime such as praemunire, but that is not the legal atmosphere we have now. Instead, we have a torrent of legalistic cockroaches swarming from under the baseboards, all of them proclaiming the supremacy of said foreign jurisdiction. So I think the revival of praemunire as a crime -- be it said, with a much more temperate punishment -- is worth consideration, because it's looking more and more like we're going to need it.

So, back to gay marriage. The tie-in with the I.C.C. and praemunire, tenuous as it is, should be obvious: It is, the pretense that the half-assed rulings of a wildly intoxicated (not to say shit-faced) court in Canada ought to have an effect on the United States and its laws. I am not saying that the penalties of a praemunire should be visited upon those saying it -- far from it -- but I think we should at least recognize the high contempt they offer to their own country and its laws, and, given that, I see no reason why they should not be treated with that same contempt.

I have discussed before that the Constitution has nothing to say on the subject of gay marriage, and that it is therefore beyond the authority of the Federal Courts to rule one way or the other upon the subject. I haven't discussed, though, just how newly-minted is the idea that it does. Our 227-year history may be divided as follows: 200-plus years for the proposition that it doesn't; about twenty years, starting about the time of Bowers v. Hardwick, of a small but gradually increasing constituency among the legal academy for the proposition that it does. Even when Bowers was being argued before the Supreme Court, the proponents of sodomy-is-constitutionally-protected took elaborate pains to deny before the Court that the Constitution commanded the acceptance of gay marriage. And no doubt at the time such persons as Glenn Reynolds and Eugene Volokh would have been at those same pains to say so. The only thing that has changed between then and now is, there's a consensus in the academy that now they can get away with it. What that doesn't say, though, is why they're pushing it. The idea, "It's the right thing to do," is a non-starter. These persons are all lawyers; they know -- or, at least, ought to know -- far better than the laity just how shoddy is what for lack of a better term I will call the constitutional argument, and still they forge ahead, trying to shove the country in a direction it has several times refused to go. The idea, "crucial liberties are being crushed," is likewise D.O.A.: The country's liberties have been holding up just fine.

There are some clues, though, in certain things Glenn Reynolds and Andrew Sullivan have said lately, as they attempt to offer a reassurance to conservatives, along the lines of, "Permit gay marriage and watch the ranks of the conservative bourgeois swell with new happily-married couples." This is highly unlikely, but let that pass. It is of no more value than the disingenuous reassurances twenty years back that a right to engage in sodomy would not produce gay marriage as a consequence, but let that pass, too. Here we have a clear indication, their thoughts are running to the political effects; they're just not being honest about the political effects they have in mind. We all know what Sullivan has in mind, which is to say, body parts; the vigor with which he stokes his rationalizations on this topic leaves no spare ergs for reason. What Reynolds has in mind, though, I think, is an old story: the preservation of an activist Supreme Court. One inescapable consequence of a Supreme Court holding that gay marriage is a constitutional right would be yet another constituency forever set in opposition to the idea that the Federal Courts ought to be bound by the actual Constitution, and thus in favor of the proposition that lawyers should trump legislatures. It's the same old power grab, nothing more.

I would also like to point out, as to Sullivan: If he finds Canada's new law attractive, nothing prevents him from moving there and having the benefit of it. He's already dumped one country, so obviously no principle stands in his way. Consider, on the one side, the fact that he isn't doing so, and all the reasons, basically amounting to no more than petty convenience, that he would offer as to why he isn't; and, on the other, his incessant fingernails-on-the-chalkboard moralistic screeching on gay marriage; and tell me: What is the actual measure of the value he sets upon the supposed right to engage in sodomy?

Finally, a snarky observation, just in passing, upon that moralistic screeching; those with a taste for irony, please note. A short while back, when William Bennett and his gambling habit were in the news, Sullivan delivered himself of what I thought was a really rich insult, all things considered: He called Bennett "a National scold."

-- posted by Clayton 6/21/2003 12:34:00 AM

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