CONSTITUTIONAL SELF-RESTRAINT: Ben Bateman replies to Mark Barton

Mark Barton eloquently summarizes the pro-SSM argument based on equal rights. He uses an analogy of a smoker who, in a calm and reflective moment, asks someone to take away his tobacco. Later, the smoker changes his mind and demands to have it returned. Along those lines, I think of the story of Odysseus lashed to the mast of his ship so that he can hear sirens' song in safety.

That's a view of constitutional law that Mark and I can agree on. Call it the self-restraint theory: A constitution is a way to restrain the mob's passions of the moment. Some principles--such as freedom of speech--are too important to be decided by a bare majority vote, so the constitution allows a supermajority of the people to protect key principles from shifting political winds. (I'm assuming here that Mark doesn't mean it literally when he writes, "no matter how many votes of like-minded people you may be able to muster, you may not have the government discriminate on certain criteria." Enough votes for a constitutional amendment will do the trick, won't it?)

The Goodridge decision doesn’t jibe with two parts of this self-restraint theory: the self part and the restraint part.

First, Goodridge was not self-imposed; the people did not consent to it. Mark points to the 1976 amendment to the Mass. constitution prohibiting sex discrimination to imply that the people of Mass. committed themselves to the principles that lead to SSM. But self-imposed constitutional restraints must mean what the people who voted for them intended them to mean. There is copious evidence that the people of Mass. did not intend to demand SSM in 1976. Exhibit one is the fact that they didn't change their statutes to legalize it at the time. Twenty-seven years later, the MSJC concluded that the people demanded SSM without realizing it. IMHO, no one honestly believes that the people of Mass. have yet consented to SSM. Goodridge merely demonstrates the truism that, with enough dishonesty and chutzpah, a clever lawyer can twist anyone’s words to mean anything at all.

Second, Goodridge isn't a restraint. It doesn't invalidate an action of the people or their representatives. The people simply want the same law they've always had. Goodridge is indeed a matter of constitutional law, but not one in which a calm judiciary must restrain the passionate mob. Instead, the court is taking action to change the law, and the people are struggling to assert their right of self-government.
posted by Eve at 11:23 PM VOTE

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