The people don't rule ... we do

The Massachusetts Attorney General has said "to hell with the law." How? By telling a gay group that the state would fight a constitutional amendment to define marriage as the union of a man and a woman, in the event that Massachusetts voters should pass it. Here is the Boston Globe:

Attorney General Martha Coakley said last night that if Massachusetts voters were to approve a ban on same-sex marriages, she would back any efforts to challenge the measure on constitutional grounds.
A constitutional ban could go on the ballot in November 2008 if it receives a second vote of approval from the Legislature.
"I think we can easily anticipate that if the proposed amendment was successful, there would be protracted, hard-fought litigation about the constitutionality of such a provision," she said in a speech at the annual dinner of the Massachusetts Lesbian & Gay Bar Association. "If that battle is necessary, you have my support."
She said she has asked lawyers in her office's civil rights division to be ready to respond, if necessary.

What the colorful could that possibly mean? What legal ground could there be for the executive of the state to battle against a state constitutional amendment once duly-passed? (as distinct from their being politicians, who obviously will line up on the merits while it's being debated).

Does self-government exist if a state court can strike down state constitutional amendments? If it can, what recourse do the people have, short of violent revolution, against runaway courts. I know High School Civics 101 is rather naive, but I distinctly remember it being said that you could always amend a constitution if you don't like what it says, but now Martha Coakley is saying the people don't even have THAT option. Or at least THOSE kinds of people don't. Nor is she the only Massachusetts official to have this kind of contempt for democracy. According to Domenico Bettinelli -- Gov. Deval Patrick warned of a "circus" that would prevent supposed-real issues from being addressed if there's a marriage amendment on the ballot. Instead, he says, the state's elites should just declare the issue "settled" (in the direction they like, of course; issues are never "settled" in the direction they don't like).

Rather than turn Massachusetts into a political circus for a national debate over something which is largely settled here, my own view is that we ought to resolve this on the merits so that it stays off the ballot...

Of course the very fact that there's a petition for a constitutional amendment rather suggests that this issue is not settled. A court decision is only "settled" to the extent Dred Scott "settled" slavery and Roe settled abortion. There's a similar admonition from Coakley too at the end of the article on her -- "we want to try and ensure that when the Legislature reconvenes, it rejects this antigay, antimarriage amendment. It can and should do it on the merits and end this debate once and for all."

But back to the absurd legal claims of Martha Coakley -- her job as attorney general is to uphold the state law, including constitutional amendments once passed, even if she doesn't like them. REPEAT IN RED LETTERS: Even if she doesn't like them. "Attorney General Martha Coakley" has no other legal quiddity or existence; she doesn't derive her power from her private morality, rather she is a creature of the law. In the paraphrased words of Mr. McAllister -- "Who does she think she is?" Diversity Director-General or Attorney General? She is betraying herself (and I know I'm stealing this line, but I can't remember from whom) as the sort of person for whom liberalism is a religion whose First Commandment is "Thou Shalt Not Discriminate" and the law only has force to the extent that it conforms thereto.

On what possible grounds could, in Coakley's words, "the constitutionality of such a provision" be challenged (assuming that we're talking about the state constitution)? What can it possibly mean to say that a constitutional amendment is unconstitutional? Certainly amendments contradict existing or previous provisions. But that's why it's called "amending" the constitution. To change its text and thus meaning.

To pick an easy example, if you passed a constitutional amendment reimposing slavery (and good luck doing that ... or not, actually), the 13th Amendment abolishing slavery would thus become null and void. Ordinary statutory construction and plain common sense would tell you that the framers, legislators and/or populaces passing this hypothetical 28th Amendment knew what they were doing in passing an amendment that directly contradicts another amendment. The voters of Massachusetts want to repeal that part of their constitution/laws that their supreme court says currently mandate gay "marriage." That's what a constitution having provisions for being amended is for.

We don't have to go into hypotheticals. Certainly, nobody thought to challenge the 21st Amendment (repealing Prohibition) on the grounds that it was unconstitutional under the 18th Amendment (which had established Prohibition in the first place). Same thing here. Only it's even more a no-brainer because gay "marriage" isn't even an explicit amendment like slavery or prohibition, but rather the application of an amendment. Nothing in the Massachusetts laws or constitution says "gays shall have the right to marry the same sex," but rather there are general provisions -- privacy, equal protection, sex discrimination, sexuality discrimination; the exact grounds don't matter -- that the court says imply a right to gay marriage. So we aren't even talking about repealing an amendment or law, merely an interpretation in a given matter.

The whole point of constitutional amendments is to be a law beyond the law, to take things off the table, to override "regular" laws, and to clarify the application of earlier amendments. On this last point, there are at least two US constitutional amendments (the 11th and 25th) were intended to correct unintended technical errors in the text of the Constitution. Practically all of them in some way or another, reverse substantive or structural judgments (DC having no presidential vote; legislative appointment of senators; the aforementioned prohibition) that were already present in the text.

But once passed, those earlier judgments are overridden by the new amendment. What is the point of having an amendment otherwise? Whatever grounds for the Massachusetts supreme court may have thought it had in the first instance, whether persuasive or not, it would HAVE to be trumped by this amendment. Even state laws that say "gays shall not be discriminated against" would be overridden by a state constitutional amendment; the law would then have to be constructed either as "marriage law does not discriminate against gays" (this is, in fact, the case most seriously-thought-through conservatives would make) or "you cannot discriminate against gays, except under the provisions of this amendment" (which would be the controlling law in the matter of marriage).

There's one other quote from this Martha Coakley person worth noting and commenting. She says that Massachusetts has had gay marriage for a couple of years and the world hasn't ended.

In her speech, Coakley said that despite warnings by opponents of the decision, "the sky has not fallen, life goes on."

Well, of course, nobody predicted that the sky would exactly fall. And who said life wouldn't go on? The sky would not fall and life would go on if we reinstituted slavery, but that is not exactly an argument for slavery.

Somewhat less literally but far more importantly, Coakley betrays that she completely misunderstands what moral collapse is and how it comes about. Social-moral disintegration is a much more subtle process than the sky falling. In the words of Raskolnikov in "Crime and Punishment" -- "man grows used to everything — the beast." All societies are at least somewhat functional, simply because they have to be (they wouldn't *be* societies lest). It's all a matter of what we get used to and how we adjust our expectations and norms in order to stay functional (society) or sane (the individual). Daniel Patrick Moynihan called one symptom of this need to keep society functional "defining deviancy down." Social norms don't exactly die, in the "kaput" sense that people die -- what happens is that norms get redefined into unrecognizability and pale shadows of their former selves.

The family has been under mostly successful assault from modernity for about 250 years, but as long as human beings are around, we have to have *some* understanding of family. We can never *say* we've killed the family, so like Freud's tribe who could never admit they'd killed the patriarch, we domesticate our definitions and keep the thing around like a stuffed animal from the taxidermist that we insist on thinking is a real tiger. Now, in order to avoid having to admit we've destroyed marriage in the name of abortion, contraception, free-love, fornication and homosexuality, we've redefined "marriage" to mean "(any number of) persons who (say they) love each other (for now) (whatever they understand "love" to mean)." Or in one phrase: man is smart enough and creative enough to always be able to redefine happiness so as to avoid calling what he has created "misery."

Yes, life will go on. But on what terms, set by whom? That is the question for social policy (gay marriage, slavery, prohibition, whatever) and it's an irreducibly moral one, not an experiential one.