See, I'm opposed to the Federal Marriage Amendment for exactly the same reason: because it is not an issue that the US Constitution deals with. Marriage is left out of the Constitution because it is not an area that the founding fathers thought that the federal government should have power over. Here we get into an area that a lot of people seem to be ignorant about: what the Constitution is and why it was written.
WHAT DOES IT CONSTITUTE
The Constitution of the United States was not written just to give a framework for the federal government to make laws. It is not a list of general rules to follow.
The Constitution is a document that presumes a shocking starting position (particularly for the time it was written): the federal government has no
power; all the power in the United States is presumed to belong to the citizens, the people. The Constitution laid out what powers the federal government was granted by
the people in order to do their job and no more
. This isn't a list of suggested powers, it is an absolute limit of all power for the government.
The purpose of the Constitution was to protect the rights and the powers of the people and the states, not to empower the government. It is a complete reversal of all governmental structures previous to that point, which is partly why it is such a shocking and singular document in human history.
And this is where Ms Coulter misses the point. See, the US Constitution didn't actually need the 13th amendment; the entire principle of America is that all men are created equal and that no man is property of another. Liberty is a fundamental right, and there was no need for a constitutional amendment prohibiting slavery (except in certain circumstances, if you are interested in more thoughts on this, read my essay on slavery
) because the principle was already repellant to the very nature of America. All the 13th amendment did was codify this so that the government was specifically
required to protect the right of liberty in this matter.
This was, by the way, the reason the Federalists opposed the Bill of Rights. Not because they believed the rights contained therein were improper, but because they thought they were redundant and obvious: of course
those rights are held by the people. The Anti-Federalists, being more visionary, understood that without putting it down on paper specifically and plainly, the tendency of all government is to swallow up and remove rights. Despite the Bill of Rights, the federal government still
tries to do so, and has in some areas.
So a rule against slavery is simply a logical and proper extension of the philosophy behind the US and the rule of law in this country. Thomas Jefferson and Benjamin Franklin (among others) worked to find a way to end slavery under this principle but were not able to find a way to do so that wouldn't tear the fledgeling country to pieces. Granted, both men still had slaves, so their hearts might not have been entirely into the effort. From the country's foundation, however, the concept was there - it's part of why the effort to redefine slaves as being only partly human was undertaken.
Sadly for Ms Coulter, marriage doesn't fit this category. It is not a constitutional issue because it is not a federal government issue. For the founding fathers, it wasn't a government issue at all
except for official recognition and some legal aspects. Because marriage is in part a legal contract there's no way the government can be entirely taken out of the equasion, yet it is not a federal issue in the broader sense.
The thing is, putting marriage into the US constitution makes it by law an aspect of life that is now under federal government power. That's an expansion of federal power over something the founding fathers knew about and believed was none of their business. Yes, there were gays back then too. Yes, some wished they could get married, the idea was not entirely alien nor did it somehow appear ex nihilo
in the 1990s.
The argument that this is the only way to stop judges is a fool's position. While it may be technically accurate, it also is giving up too much to gain too little. If judges will rule that the US constitution somehow demands
that gays be allowed to marry, even though it plainly and inescapably says no such thing, what will stop them from "reinterpreting" the offending amendment, or even worse creating a constitutional crisis by declaring the amendment invalid because it is in contradiction with other parts of the constitution? If judges are so wholly out of control and powerful then your amendment will not stop them.
The proper answer is to get better jurists in place and to get rid of the poor ones. It is a slow, difficult process, but a far better one that does not involve surrendering critical parts of your liberty out of frustration and fear.
Certainly if the people choose to, they can add any new power granted the government into the constitution. It may be unwise and foolish, it may be an increase of government tyranny and a surrender of critical liberty, but the people can
do so. The ability to create amendments is open ended and very clearly laid out without restriction. That's why the founding fathers argued we needed a virtuous and well-informed populace or the Republic could not continue.
One final thought. There is an argument against the FMA that is wrong both logically and constitutionally. It goes like this: all of the constitution grants liberties and rights and this would be the only one to restrict it! That's just improper and wrong!
Again, the constitution does not grant rights or liberties
it only forces the government to protect them. The entire document is a restriction: a restriction of federal government tyranny. The argument that this somehow would be the only restriction is not only wrong philosophically in this sense, but it's also false in the sense it is intended. The 13th amendment bans people from owning slaves. It is a negative in the constitution, it does not extend rights, it restricts freedom.
To be certain the 13th amendment guarantees the right to liberty, but it also prohibits people from doing something they wish to do - in this case own slaves. The fact that we consider this a reprehensible act and an immoral deed does not make that any less true. And your perception of morality can hardly be the guide of how laws are written or how cultures are formed.
In this case, Ann Coulter is wrong and Senator Obama is right: the FMA would be an improper addition to the US Constitution because it simply does not deal with marriage. Unfortunately for Senator Obama, that also
applies to judges attempting to force gay marriage to be legalized as well.
If you'd like to read more about the US constitution, I've written quite a bit
on the topic and on rights