The Constitutions in Our Brains
Such is the line in liberal circles concerning the federal district court decision striking down the federal Defense of Marriage Act on, among other grounds, those of "States Rights." Including Massachusetts' right to allow gay marriage without prejudice to the partners' right to federal benefits.
Congress, a decade and a half ago, voted that traditional male-female couples alone could receive pension and like benefits. The trial judge said, nope: Massachusetts can regulate marriage however it wants. Congressional attempts to say otherwise run afoul of equal protection guarantees embedded in the 14th Amendment—the same amendment, be it noted, used by federal courts to whack the states again and again this past half century whenever they have shown a preference for, say, running their own schools or prisons.
Consider then the preferences of Arizona. The last time I checked Arizona was still a state, like Massachusetts. Except the Justice Department wants another federal court to strike down the state's new immigration law—the one that government lawyers say intrudes on the federal government's exclusive right to regulate border comings and goings.
What goes on here? Does anything, besides the usual arm-wrestling over power and authority as apportioned between state and national governments? Every contest over a Supreme Court nomination—Solicitor General Kagan's being the latest instance—traverses this ground. Lewis Carroll's Humpty Dumpty got it right: The question is which is to be master—that's all. Respect for the rights of local people usually reflects a conservative style of judging; disdain for local viewpoints usually, but not always (see above) reflects a liberal, do-it-our-way judging style.
The controversies over immigration—and especially, gay marriage—are signposts marking an older American culture's retreat from old certainties: the unity of the tribe, the tribe's embrace of tested moral norms. The constitutional arguments have something to do with the essence of both issues, but not that much, really. A newer culture has new norms it wants to impose. It gets down to that.
The newer culture (not yet in control) buys into the notion that marriage—hey!—is about sex, mostly, instead of about the raising and care of children, the projection of life into the future, in the manner understood by all past and present civilizations. The newer culture says, whatever people want, the law should give them.
Older cultures, always fluid, always adaptive in terms of membership, nevertheless saw—and see—tribal unity as a practical good. Not that we didn't want Irish (Italians or Slavs or Mexicans); what we prized, generally, was an orderly procedure for absorbing newcomers—for making citizens and neighbors out of them. The porosity of the U.S.-Mexican border offends Arizonans because it subordinates Arizona's needs to Mexico's—with the political connivance of newer culture types who want the immigrants to become grateful voters. To live in a place, yet to have to share it with the uninvited, is to know resentment and anger of a sort reflected in Arizona's immigration law, the one the government says no state has a right to pass.
Americans, with the media's help and encouragement, see judges and constitutions as part of the scenery of Mount Olympus—high, exalted, removed from daily life. In fact, constitutions are what cultures say they are—which is why the "original intent" of the authors never rates as highly with judges as it should.
Constitutions are in our brains, for better or worse. Marriage is a holy as well as civic enterprise, but if people stop thinking of it thus, it will become something else. Tribal unity is good until the tribe decides, aw, what the blazes?
We all have our deeply felt views on these matters. What we must acknowledge is the dynamism of democracy. Those of us who don't like what's afoot can't look to constitutions to save us. We have to out-write, out-argue, out-persuade; make the culture buy into our arguments so the judges will, too. Tough work, but that's democracy for you.
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