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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.

Tuesday, February 10, 2004

Eugene Volokh on a proposed approach to a Federal Marriage Amendment.

Consider the Article V process. Consider the enormous investment of time and effort required to get anything through it. Consider how much greater that investment must be, when the subject matter is as contentious as this one. Now picture the man who undertakes all this, when the goal of all his striving is, "We agree to disagree." Does this look just the slightest bit unrealistic, maybe?

Constitutional amendments are nuclear missiles, not spitwads. The courts have been able to get away with as much as they have, because the country isn't willing to reach for the nukes every time the courts go on a toot. And when the country is finally driven to push the button, it's not going to confine itself to half-measures; it will make sure the job gets done.

I find it interesting, though, that Volokh, a professor of law, is saying "I agree entirely" of a measure that openly proclaims, "We don't trust the courts."

And why do I have this suspicion that what Professor Bainbridge means by "reach[ing] consensus" is what Andrew Sullivan means in the same context? which is, "You've got one chance to see things our way, before we shove it down your throat."

-- posted by Clayton 2/10/2004 11:06:00 PM

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