John Kerry on Constitutional Amendments

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I never thought John Kerry had much to say about the gay marriage issue. It's pretty clear now that when he does try to say something about it he has no idea what he's talking about. Here's what he said (the whole thing is here for context, not that it helps):

I believe that the president of the United States should not use the Constitution of the United States for election purposes during an election year. It's a document that we haven't touched, certainly with respect to the Bill of Rights, for years, and I don't think it should be used for the purpose of driving a political wedge through America. I think it's wrong.

Now, that said, I personally have taken the position I believe that marriage is between a man and a woman. That's my position. And I think that's the way you respect -- (applause) -- that's the way you respect both traditional values, but you can allow civil unions, which protects the rights of people in America not to be discriminated against. And I think you can balance that. And I think it's appropriate to. But I do think that it ought to be left to the states. There's no showing whatsoever yet that the states don't have the ability to be able to manage this one-by-one individually, and we have always, throughout history, left the issue of marriage to the states. That's what I think we should do. I think the president should not be meddling with the Constitution of the United States for his political objective.

Volokh reminds us that the Constitution was last altered ten years ago, with a total of five amendments since 1960. I believe Kerry himself has supported the failed Equal Rights Amendment during the last 20 years. All this even fails to notice that the Bill of Rights wouldn't be affected by a marriage amendment. Those are some pretty important facts to be wrong about, especially given the place they have in his criticism of Bush.

Volokh seems to be trying hard to consider possible interpretations of Kerry such that he doesn't come out either contradicting himself or waffling. The more careful Kerry defenders, including Wink on this site, have pointed out that many of the accusations of waffling or contradicting himself are unjustified. The more careful Bush supporters have acknowledged this. However, this is one where I don't think that can be said (and I don't think it's the only one). Some of these are just mistakes, but the fact that he can make so many of them at once leads me to believe that he hasn't really thought much about this issue at all except to have some sound bytes given to him by his aides so he has something as inoffensive to as many parties as possible to tell the media.

There's a view that he's taken that's consistent and makes sense (and I'm willing to consider that it may even be the correct view), but I'm getting a clear sense that he holds that view (if at all) in the same way that most college students are ethical relativists. He hasn't thought about any reasons for it except that it helps him politically, just as they haven't thought about any reasons for relativism other than that it helps them get along with people. They have no real theory behind why they think it, and they have nothing to say to challenges to it (which sophisticated relativists do have). The same might be said about Bush as a non-intellectual, but for Kerry it's hypocritical, whereas for Bush it's just honesty, After all, Kerry is the one portraying himself as nuanced and having carefully thought-out, intellectually-supported views, while he portrays Bush as a knee-jerk reactionary who has no reasons for anything he holds. Perhaps Kerry is right about that on some issues, and perhaps he's right about it with himself on some issues, but this isn't one of them.

Now I won't claim not to have noticed any of the problems with Kerry's statement that Volokh discussed and I've elaborated on, but what stood out to me most (and wasn't taken up by Volokh at all) was Kerry's charge that Bush is using this "for the purpose of driving a political wedge through America" and "meddling with the Constitution of the United States for his political objective".

On one level, the second charge is perfectly innocent. There's nothing at all wrong with meddling with the Constitution for a political objective. That's in fact what every single amendment ever adopted did. It's even what the founders were doing when they wrote the Constitution to begin with. These are all political objectives. That's not what he meant, judging by his earlier way of putting it, but that he doesn't see that on the face of it there's nothing wrong with his second charge against Bush reveals a deficiency in his thinking. It's as bad as those who claim that you can't legislate morality or that you can't use a religious reason to support a law. By far the vast majority of our laws are legislating morality (e.g. that it's wrong and therefore should be illegal to steal, murder, rape, or break a contract). Most of the people who have instituted such laws have done so for religious reasons. That doesn't mean the laws are bad or that the motivations for doing so are wrong. Putting it so simply masks the real argument against whatever laws the people are opposing and prevents real dialogue. Unfortunately, all those lame complaints are common in contemporary liberalism and shut off the discussion immediately.

Still, my main point here is to respond to his first way of putting the charge. He thinks Bush is doing this in order to divide America. Has he lost his mind? Bush is doing this for a number of reasons. I can only speculate which of them are foremost in his mind. He has a loyal following among non-extreme evangelical Christians who are politically conservative. (A fair number of evangelicals are either politically liberal or self-destructive in supporting the Constitution Party.) He doesn't want to lose that. He probably agrees with their sentiment that homosexual behavior is wrong and that it's a tragedy that gay people are getting married. I don't believe for a minute that he thinks it's as tragic as some people think. I don't believe for a minute that he thinks gay people are evil in some way that other people aren't (he probably, as a good evangelical, believes that all people are evil). He doesn't think it's the end of the world and will require legalizing rape if we legalize gay marriage. He knows that the amendment has no chances at all and therefore has little to lose in terms of legal consequences, though he would have calculated that it would alienate some former supporters who are gay Republicans.

Those are all reasonable speculations about why he would support an amendment. Not one of them included any deliberate attempt to divide America. I'm not sure why he would want to do so. He would probably prefer to bring Democrats over to support him rather than alienate them. He would probably prefer to have as many people as possible united not just in the war on terrorism but in the moral crusades that he's taken on, including the defense of marriage (which his primary support has been in a George Willian soul-crafting attempt through state encouragement for programs that help married people who were only infatuated with each other and have lost the infatuation finally learn to love each other, which would therefore help them stay together and work through their problems rather than divorce, as many people who never loved each other have done).

Finally, there is one point worth considering about his final view, which is that this should be left to states. The main argument for the Bush position is that states ideally should be deciding this in their legislatures but that an unelected state judiciary has begun to decide it instead, leaving its legislatures no choice but to engage in the very slow process of undoing it after two years (since that's how long the state amendment process takes, even after they can agree to an amendment they like). Simply stating that it should be left to states doesn't engage the Bush position, which concedes that in the ideal situation. Kerry hasn't yet taken a stance on the judicial legislation issue. Bush has. That's yet another reason to think that the Kerry position isn't carefully thought out or formulated.

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...Sorry... but I find that plain stupid.

What is and why?

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