Opinion Columns & Blogs

Constitution should define rights, not policies

Yet another state has cemented into its constitution a religious definition of what should be, in law, a civil institution.

North Carolina became the 30th state whose present voters have sought to impose their beliefs on its future voters by limiting their right to self-governance. As a practical matter, constitutionalizing marriage won’t work. As a philosophical and moral matter, it is dangerously undemocratic.

On the practical side, absent an unlikely reversal in the steady acceptance of the concept of same-sex marriage, banning it in a constitution only delays the inevitable and makes achieving future fairness slightly more difficult and contentious.

On the philosophical side, there’s no legitimate reason why policy beliefs, even deeply held religious ones, should be written into constitutions – which are designed to describe how a government can provide fairness for all people for all time, not to tie them to momentary political passions. It would not be wise, for instance, to lock into a constitution such things as a tax rate or highway route.

Certainly that’s how those who adopted the U.S. Constitution saw its role. They created a form of government, not a statute book or scripture, and crafted it to ensure that future generations would be free to express their own policy preferences and needs through legislation. They did describe certain inalienable protections from the power of the state, but they did not restrict future rights or prescribe policy.

They also assiduously avoided – and in fact proscribed in the First Amendment and elsewhere – any effort by government to impose religious beliefs on citizens.

The efforts in those 30 states to tie the hands of future generations often reflected a fear that statutes alone would not be sufficient to limit marriage to one man and one woman because “activist” judges could declare mere statutes unconstitutional. Their false remedy was to constitutionalize the definition.

The contradiction, and irony, is that consitutionalization actually endows judges with even more potential to do the very mischief that the backers fear, because every legal challenge to any part of a constitution falls clearly within the interpretive authority of the courts. And the amendments in some states contain fuzzy terms and ambiguous language that will need judicial interpretation, and could require even more constitutional amendments to remedy.

So working within normal legislative parameters instead of the confines of a constitution is more practical and also more protective of the very power that the amendments’ backers seek to wield.

But more important, using conventional legislation recognizes the right of future generations to deal with the policy issues of their time and place as they choose, without shackles from the past.

We’ve been down this road before. Many states once had constitutional bans on interracial marriage, on women voting, and on such policy questions as businesses being open on Sundays – issues fueled by torrid passions and religious conviction. Time overtook those inappropriate limitations and will overtake the one limiting the definition of marriage. The force that voided those restrictions was a constantly evolving concept of democratic equity.

Only a day after the North Carolina vote, a sitting president seeking re-election felt comfortable enough to join the growing tide of opinion that recognizes the right of all people to commit their lives to one another free from government restriction.

And that’s how democracy’s supposed to work.