In an ideal world…

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One of the names often mentioned as pundits speculated who President Bush would name to replace retiring Supreme Court Justice Sandra Day O’Connor was J. Harvie Wilkinson of the 4th Circuit Court of Appeals. Wilkinson authored an op-ed piece in yesterday’s Washington Post cautioning against efforts to amend state and the federal constitution to prohibit same sex marriage.

Ordinary legislation — not constitutional amendments — should express the community’s view that marriage “shall consist only of the union of a man and a woman.” To use the Constitution for prescriptions of policy is to shackle future generations that should have the same right as ours to enact policies of their own. To use the Constitution as a forum for even our most favored views strikes a blow of uncommon harshness upon disfavored groups, in this case gay citizens who would never see this country’s founding charter as their own.

I concur with Wilkinson’s postition … in an ideal world. In a world where judges don’t go about short-circuiting the democratic process by inventing new rights out of the shadows and penumbras of whatever document they happen to find stuck beneath a long-forgotten bag of Cheetos in the bottom right drawer of their desk.

Legislation should be enough … but judges have taught us that too often it isn’t. So Wilkinson should consider reining in his colleagues first before he tries to rein in the electorate.

Of course, not all state constitutions are like the federal constitution. California’s constitution, for example, is a mess that undergoes some amendment or change just about every election cycle.

The federal constitution is different, but Wilkinson classifies democratic efforts to change the constitution — as provided for in that very document — as something out of the ordinary and undemocratic. Sorry, but that just doesn’t hold water. Besides, as the 18th and 21st Amendments demonstrated, the constitution is by no means unchangeable.

In an ideal world, I’d be 100 percent behind Wilkinson, but the real world bears only the faintest of resemblences to the ideal world.

Matthew Franck has some more analysis of Wilkinson’s article here, here and here, with more to come.

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