BARR on FMA: James Q. Wilson

[James Q. Wilson is a professor emeritus at UCLA, and recently received the Presidential Medal of Freedom, the nation's highest civilian honor.]

In my view, marriage, like abortion, ought to be decided by each state, not only because these matters fall within the states' police powers, but because different state approaches might tell us something of value. Barr's argument against the constitutional amendment is a good one, PROVIDED that the Supreme Court does not require, by judicial fiat, that every state have the same policy. Because of its decision in the Texas sodomy case, every state must still respect something vaguely called "privacy." The Court could have struck down the Texas law on the perfectly reasonable grounds suggested by Justice O'Connor: by distinguishing homosexual from heterosexual sodomy, it violated the equal protection of the laws. That would leave each state free to pass a full-bore anti-sodomy law (no state would, I suspect) or abandon its homosexual-only anti-sodomy law.

So a better constitutional amendment would be one that assigned to the states complete authority over domestic social arrangements, confirming their police powers. Such an amendment would be difficult to draw up and very difficult to pass. Or a constitutional amendment might modify what kinds of cases the federal judiciary can hear, another tough (but useful) task.

Otherwise, we are stuck with the worst kind of judicial activism.
posted by maggie at 12:06 PM VOTE

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