One more time

I’ve been on this earth since the 1940s, and for most of the years since then gay marriage was never something people talked about. Generally if people don’t talk about something, they don’t think about something — unless it directly affects them, that is.

So it wasn’t until recently that people started talking about gay marriage, and that happened because people who are gay started wondering out loud, “Why can’t I get married?”

And that’s when I started thinking about it. All of a sudden it was all over the news, and before other people could start wondering why gay people couldn’t get married, a panicked Congress passed the Defense of Marriage Act. I guess the idea was to settle the question before too many people asked it.

But it didn’t work with me. When I asked myself about it, my mind went immediately to the Constitution, specifically the 14th Amendment’s Equal Protection Clause, which essentially prohibits states from denying to any person within its jurisdiction “the equal protection of the laws.” And interpreting this is oh, so easy . . . so easy in fact that a child can understand it. What it means basically is that a state can’t deny a right to someone that it has granted to someone else.

The plain fact is, states everywhere should be throwing out their unconstitutional marriage laws without waiting for court challenges — or (especially) without calling for referendums. How foolish it is to think something like interpreting the Constitution should be left up to the people. That, folks, is what courts do.

Like it or not, states have only one legitimate interest in deciding who can and cannot get married — whether or not those applying for marriage licenses are consenting adults. It may be possible to define narrower interests regarding polygamy and incest, but those aren’t at issue here.

Figuring out that gay marriage had all the constitutional protection it needed was easy for me — and when courts have the opportunity afforded by challenges to review the laws, for the most part they agree. It’s politicians who can’t all be persuaded, apparently in some cases despite legal backgrounds themselves. Take the Arkansas attorney general, for example — Dustin McDaniel — who decided to appeal a court decision to throw out laws prohibiting same-sex marriages. Yikes — did McDaniel sleep through his Constitutional Law classes? Surely if a layman like me can understand the 14th Amendment, so can an attorney.

Principles in the Preamble

While the Preamble to the Constitution doesn’t necessarily assign powers to the government, it does offer a set of principles that should guide those who make laws and interpret them. Here’s the Preamble; see if you can find those principles:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Do you see anything that says our government should not have a heart? Don’t you think the Preamble establishes a certain uniquely American spirit for governance?

Flat tax? Ha-ha!

A handful of presidential candidates, past and present, have advocated and run on one kind of flat tax plan or another. They all make it sound like a promise: “If I become president, I’ll institute a flat tax.”

Nope. The only place in the Constitution where the word “tax” appears is in Article I, which outlines the responsibilities and powers of Congress — the House and the Senate. The president has nothing to do with levying and collecting taxes. A president might propose a tax plan to Congress, but they’re not obliged to listen. (It should be noted that a few constitutional amendments address taxation, but none give any power to the president.)

What these candidates should promise is, “If I become president, I’ll ask Congress to consider my plan for a flat tax.” And what Congress will probably say is, “Ha-ha-ha-ha-ha . . .”

The danger of Perry looms

Texas governor and Republican presidential primary candidate Rick Perry has big plans to overhaul the Constitution, which he described in his book, Fed Up! Our Fight to Save America from Washington. His proposals, summarized in a Yahoo! blog, The Ticket, by Chris Moody, range from limiting tenure of federal judges to abolishing the income tax to defining marriage as being between a man and a woman to prohibiting abortion nationwide. They involve amending the constitution, adding new amendments, and rolling back existing amendments.

Here’s the good news: you can propose changes to the Constitution till you’re blue in the face, but the founders were smart enough to make it an arduous process, probably recognizing that the occasional peanut brain with looney ideas might get elected to high office. In our history, only one really stupid amendment was ever added to the Constitution — prohibition — and I’m sure every member of Congress, the president, and every state legislator of three-fourths of the states who voted to approve it was drunk at the time they voted.

Assuming he became the Republican nominee, and assuming he won the presidency, Perry would have to hope that enough peanut brains were elected to Congress to get his changes off the ground — possible, but a statistical unlikelihood. But his ideas should sound an alarm about this presidential wannabe.

Lifetime tenure is one of the underpinnings of the concept of checks and balances, and while we may not like the idea of an Antonin Scalia serving forever, we at least get a Ruth Bader Ginsberg for that long. The power to nominate judges rests with the president, which should give pause to voters when they cast a ballot every four years. This is how men far, far wiser than Rick Perry meant it to be so long ago.