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Chief Justice Lorie Gildea questions attorney Erick Kaardal as he presented his argument representing the petitioners as the Minnesota Supreme Court heard oral arguments challenging the Secretary of State and Attorney General changing the titles of constitutional amendment questions headed for the voters on Tuesday morning, July 31, 2012.

John Doman, Associated Press

Constitution defines, but does not owe, freedom

  • Article by: ROBERT DELAHUNTY
  • September 5, 2012 - 1:59 PM

Counterpoint

My colleague Mark Osler argued in these pages ("Those who'd go constitutional would cross a carefully crafted boundary," Aug. 24) that proponents of the marriage amendment err by seeking to "put an express limit to individual freedom" in the state's Constitution. He believes that constitutions have historically expanded individual freedom, and that to contract individual freedom would be a regrettable departure from that practice. He is wrong, both logically and historically.

The argument is flawed logically because whenever the law expands the freedoms of one person or group, it necessarily contracts those of another. When the U.S. Supreme Court raised the bar to success in libel suits brought by public officials, it expanded the freedom of the press but diminished the freedom to serve in public office without fear of being defamed. Freedom to publish narrows the right to safeguard a reputation.

This is also true in other areas. Critics of the U.S. Supreme Court's campaign-finance decisions would be willing to restrict the freedom of corporations to support political candidates, even though corporate political spending does not prevent individuals from contributing as well. The critics argue that corporate political spending corrupts democracy by enabling corporations to exert undue influence over the government's decisions. The freedom they claim has been lost is that of living in a less corrupt political environment.

Similar reasoning applies to marriage. True, people of the opposite sex are still free to marry one another even if people of the same sex can do so as well. But proponents of the marriage amendment argue that an important freedom is being lost: that of living in a social world in which marriage has a particular meaning and is related in specific ways to natural reproduction and family life.

Of course, some tradeoffs are desirable. No one now regrets that the constitutional amendment banning slavery necessarily ended the freedom to own slaves. But it is not an argument for that amendment that it expanded freedom without contracting it. It did both.

Furthermore, my colleague's understanding of historical practice is also mistaken. The original federal Constitution of 1787 made scant express provision for individual rights. Despite the resistance of some of the most important framers of the Constitution and in response to the demands of their antifederalist critics, a Bill of Rights was added -- later. The original Constitution was perceived to be defective and in need of significant amendments. That is probably true of any existing constitution. The precedent of the Bill of Rights should encourage, not discourage, the practice of amending constitutions.

Liberals should be especially receptive to the idea of frequent constitutional amendments. On the whole, liberals favor what is called a "living" constitution -- meaning one that is continuously revised and adjusted to meet emerging social needs. But in the minds of most liberals, constitutional updating should be left to the courts, not to elected bodies or the voters themselves. Constitutional updating is what the Minnesota courts are being invited to do in Benson vs. Alverson. There, the courts are being asked to interpret the state Constitution so as to require the issuance of marriage licenses to same-sex couples.

If the state Constitution requires refashioning on marriage or any other important topic, however, the voters should do it, not the courts. In classic American political theory, the sovereign "people" make and remake constitutions, and the courts are merely the people's agents. Moreover, courts tend to be unrepresentative, reflecting the preferences of elites rather than those of ordinary citizens. The business of amending constitutions should be wrested away from them, and placed back where it belongs.

There are valid reasons to oppose -- or support -- the marriage amendment. But to say that the state Constitution should not be amended because doing so would upset a valued and traditional practice is not one of them. As a conservative, I agree with my colleague that the claims of traditional practices and institutions are important. But surely that is a reason to support, not to attack, the practice of marriage as our society has always known it.

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Robert Delahunty is a professor of constitutional law at the University of St. Thomas. The views he expresses are his own and not the views of the university.

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