Whispers in the Wasteland

Dred Scott and FMA

I sent the following e-mail to Jonah Goldberg. It's in response to George Will's Massachusetts Marriage and Goldberg's Federal Marriage Amendment a bad idea, but I only have Jonah's e-mail address.

Dear Jonah,

I have a complaint. Why does it seem that your more forceful arguments for federalism are in support of the gay agenda? Little Lucy may learn about "Tajikistan," but she won't learn how to pronounce "Leviticus" in public schools. Just as the 14th imposes the 1st Amendment onto the states (we won't see any Bible teachings in either of the state laboratories of New York or Missouri any time soon), the 14th raises gay rights under the banner of equality.

The problem with this social experimentation is the implied promise that once this social experimentation proves to be disaster in the laboratory, we'll just roll back the clock. Hey, you never know, you might have a calling to sell bridges in Brooklyn. I just don't see any roll back in the liberalization of divorce laws, do you? I'm unlikely find anyone who won't concede that this divorce policy has been a social disaster. But I don't hang around in your social circle, perhaps you can find a supporter of no fault divorce laws.

I don't like tinkering with the Constitution any more than you do. When NRODT came out in support of FMA, I was opposed to it. I saw the FMA as a bandaid on the gaping wound of judicial activism. I had hoped that we would discover how to counter activist judges, but apparently nothing short of dismantling Marbury will stop them.

As others have pointed out, a marriage that has only partial recognition is worthless. A marriage in Massachusetts will have to be recognized in Texas, because a situation similar to Dred Scott will be in place. Recount that then, the Supreme Court decided that a slave in Texas had to be recognized as a slave in Massachusetts (of course this is a rhetorical device, Massachusetts and Texas were not the two states involved in the Dred Scott decision). There is a strong case to make that the Court was correct about Dred Scott, that it was the inevitable conclusion that America would only be all slave state or free state, but not a mixture of both.

The flaw was in the Constitution created in 1787. Remember that the compromise on slavery was necessary in order have any chance of implementing the Constitution in the first place. Many founding fathers held their noses at the compromise, and disliked even the backhanded acknowledgement of slavery in the wording of Constitution. That many conservatives treat the Constitution as sacrosanct is admirable, but there are moments when pristine principles meet with muddy practicality.

The courts are tampering with one of the Permanent Things, that conservative social institution called marriage. When such social tinkering is proposed, conservatives should feel the same sort of tepidation that J. Robert Oppenheimer claims to have felt in Los Alamos. It's a brave new world. Marriage will survive sodomy. However, society won't.