- - Monday, December 1, 2014


In advocating Sen. Ted Cruz’s proposed amendment to the U.S. Constitution to defend traditional marriage, Gary Bauer notes that amending the Constitution is difficult. (“Considering the thorny question of a marriage amendment,” Web, Nov. 20). It is also totally the wrong approach.

The United States government can only legally exercise those powers granted to it in the Constitution. Mr. Cruz, Mr. Bauer and other advocates of a federal marriage amendment have mistakenly fallen for the false assumption that the U.S. government can do anything it wants — unless the Constitution specifically prohibits it.

The purpose of an amendment to the Constitution is to correct a deficiency in the document. As so many admit, the problem is not the Constitution; it has been federal judges who usurp authority they do not lawfully have, and the legislatures that have allowed them to get away with it. Not only does a constitutional amendment fail to address the real problem, it gives these usurpations a legitimacy they do not deserve.

Article III, Section 2 of the Constitution grants Congress the authority to grant or deny federal courts jurisdiction outside of the few areas already mentioned in Article III. All Congress would have to do would be to pass a law reading something like, “In accordance with the authority granted to Congress in Article III, Section 2 of the Constitution of the United States, the Courts of the United States shall have neither original nor appellate jurisdiction in cases regarding the institution of marriage, or of sexual conduct between individuals. All judicial authority in these areas shall be vested in the judiciaries of the individual States. In accordance with the authority granted to Congress in Article III, Section 2 of the Constitution of the United States, the Courts of the United State shall not have any authority of judicial review over this law.” It would take only a simple majority in each house to pass the measure, plus the president’s signature. President Obama might veto the bill, but Congress could always override the veto. We would not have to do any tinkering with the Constitution, it would deal with the real problem and the courts would be unable to do anything about it.

I have always been leery of a federal marriage amendment. The real problem has been judges who ignore the Constitution and the law — why would anyone think that if this one more amendment were added, these judges would suddenly start to respect it? At best the new amendment would simply be one more provision in the Constitution for them to ignore. Worse, if the federal marriage amendment should be ratified, for the first time the United States government would have legitimate authority to define what marriage and a family are. I shudder to think what the political left and the social engineers would try to do with that.



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