Joseph Sobran’s
Washington Watch

A Losing Strategy

(Reprinted from the issue of July 22, 2004)

The proposed constitutional amendment defining marriage as a union between people of different sexes has met inglorious defeat in the U.S. Senate. It was a bad idea. As so often happens, social conservatives led with their chins, picking a fight they couldn’t win.

And didn’t need. Like the recurrent anti-flag-burning amendment, it was a disproportionate reaction to a minor problem. Homosexual “marriage” may be in vogue in a few areas right now — the usual wacky precincts, from San Francisco to Boston — but it doesn’t have much of a future as an institution.

Massachusetts’s Supreme Court, enacting its self-imposed duty of repealing Western civilization, brought the issue to the fore by finding that equal rights means that sodomy must be put on a par with procreative unions. This was a clever strategy to invoke the “full faith and credit” clause requiring all 50 states to honor even the most bizarre laws of any single state, even if it’s the Bay State. There is no logical limit to such absurdity, which might require all the states to recognize the lobster as a mammal if Massachusetts says so.

The courts have been getting too big for their britches for many years; and, not content with legislating rather than just interpreting the law, they’ve now decided to overhaul the dictionaries too. The politically correct has become the linguistically preposterous.

The correct response to a judicial power play is to treat it as null and void. The courts depend on the other branches of government to enforce their decisions. But those other branches are also entitled to interpret the Constitution, and they may, and should, refuse to enforce what they deem unconstitutional rulings.

And if the courts refuse to respect their limits, there is the ultimate remedy of impeachment. It should have been used long ago, when the courts began usurping powers never assigned to them. If usurpation of power, destroying the balance of power among the three branches of government, isn’t grounds for impeachment, what is?

Nobody can honestly say that the Massachusetts court is merely interpreting the law; it is imposing its will, the current liberal agenda of sexual revolution. No dispassionate reader of the Constitution has ever concluded that it means what this court wants it to mean. The idea could only have occurred to an advocate of the homosexual cause. And judges aren’t supposed to be advocates.

In his famous dissent, Justice Byron White called the majority ruling in Roe v. Wade an act of “raw judicial power.” He was exactly right: It was a usurpation of power, and therefore an abuse of power. Unfortunately, the country, or at least its political class, had by 1973 long since formed the habit of pretending that such abuses were perfectly legitimate exercises of judicial authority. If ever a judicial coup called for impeachment, that one did. But nobody even proposed it. Instead, opponents of legal abortion assumed the burden of amending the Constitution or at least gradually replacing the court’s personnel.

But it wasn’t a personnel problem, and the Constitution wasn’t the problem either. So, at about the same time a president was being impeached for relatively minor abuses of power, the runaway judiciary continued on its merry way; as it still does.

And conservatives are still letting the courts not only rewrite the law, but determine the ground rules under which they escape all responsibility for even their most arrogant presumptions. It’s impossible to conceive a more hapless strategy than trying to amend the Constitution every time the courts violate it. This has failed every time, and it has just failed again. (And even if it succeeded every time, the Constitution would wind up as long as the Federal Register.)

But don’t expect the conservatives to abandon this approach just because it never works and never can work. They seem to enjoy nothing better than offering futile constitutional amendments. It must be a great fund-raising tactic; but for achieving political results, it’s like playing Russian roulette with one empty chamber in the pistol.

So whose purposes does this strategy serve? President Bush and his political advisor Karl Rove have decided that sodomatrimony is a great election-year issue, a chance to highlight Republican “family values” in contrast to John Kerry’s Massachusetts liberalism; and Bush endorsed the amendment. It cost him nothing; and it was effective sucker-bait for the conservatives who still want to believe he is “one of us” at heart and who wouldn’t blame him if it was defeated. After all, he did his best, didn’t he? He talked about the “sanctity” of marriage and all that. It’s not his fault if the Democrats and tepid Republican moderates didn’t back him up.

Bush and Rove no doubt calculate that conservative frustration, carefully stoked, will pay off in passionate support in November. This is no time to abandon a losing strategy.
 
Further Confirmation

The Senate Intelligence Committee’s report has concluded, unanimously, that the Bush administration’s case for attacking Iraq was pretty much groundless. It stopped short of suggesting any official mendacity, and even cleared the administration of pressuring the CIA to tell it what it wanted to hear. Still, it said the agency had “overstated” the threat posed by Saddam Hussein and was guilty of “group-think” in misinterpreting the evidence so badly.

Even Pat Roberts, the committee’s Republican chairman and an ally of the White House, suggested that he might not have favored the war if he’d known then what he knows now. Other committee members said more bluntly that an accurate presentation of the facts would have prevented the war.

No pressure? Maybe the Bush team didn’t twist any arms to get the results they wanted, but it was hardly necessary. The pressure was in the air itself, and only a hermit could have failed to know that Bush and Company were eager for justifications for striking Iraq.

This report was an exercise in supererogation. By now Bush’s case for war has been demolished so many times, by so many witnesses and by events themselves, that it has become monotonous. His defenders are reduced to carping about Michael Moore’s exaggerations. They remind one of the Irish politician’s indignant complaint: “Half the lies our enemies tell about us aren’t true!”

Bush himself doggedly insists that the Iraq war has made us “safer,” even as his crack Homeland Security experts issue heightened warnings of new terrorist attacks. The future is always uncertain, but by now we can assume that any further revelations about the Iraq war will be embarrassing.


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Joseph Sobran