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Further Consideration; Still Scratching My Head
07/15/2003

Having reread the sentences that I quoted from Andrew Sullivan this morning, I think I've found what might have been his thought process. The only way I can make sense of it is if the second half of the paragraph, about varying views on the FMA, isn't meant to be but so connected with the opening about those opponents of gay marriage who think the amendment isn't strong enough.

But I'm still scratching my head about his conclusion:

...if the language of the amendment can provoke genuine and deep disagreement by serious parties, wouldn't it be similarly open to a radical spectrum of intrepretation by courts and legislatures? And isn't such a vague and sweeping amendment precisely what shouldn't be written into the federal Constitution?

Here's the First Amendment, far and away the most popular and most cited amendment ever:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Of course, we all know how the years of litigation have honed this paragraph's meaning, but try to approach it in the same way in which we're looking at the Federal Marriage Amendment now. Should individual states be able to "establish" religions? "No law" would seem to bar contrary laws. What does it mean to "establish" a religion? Is it allowing a group to donate plaques with Bible quotations at the Grand Canyon? And what is "abridging the freedom of speech"? Is it a principal forbidding a student anarchist from handing out disruptive material, or is it another principal forbidding Christians from handing out candy canes with notes about their religious significance? And could people who wish to peaceably assemble be required to apply for permits?

Come to think of it, other amendments have such "vague and sweeping" words in them as "reasonable" and "excessive."

Posted by Justin Katz @ 11:12 PM EST



1 Comment


As they say, the devil is in the details. After thousands of years of written contracts, people still litigate over their supposed "unabmiguous meanings" (thank heavens, or I'd be out of a job). Every amendment to the constitution is vague (what the heck is "due process" anyway?). We can't even figure out what "person" means. Moreover, Sullivan's complaint that "... such a vague and sweeping amendment precisely what shouldn't be written into the federal Constitution?" should equally apply to vague and sweeping gibberish that passes for constitutional analysis such as "at the heart of liberty is every person's right to define reality." [Paraphrasing, of course].

c matt @ 07/18/2003 02:57 PM EST