Constitutional Thematics and the Peculiar Federal Marriage Amendment
University of California Hastings College of the Law
BYU Journal of Public Law, Vol. 20, p. 233, 2006 (Symposium)
These sympsium remarks are a discussion of themes running through the Constitution, how the FMA, if adopted, might affect those themes, and why we ought to care. I first demonstrate that our Constitution is a thematic document, filled with broad, recognizable, and (mostly) coherent concepts. Separation of powers, representative democracy, federalism, individual liberty, and equality come readily to mind. I then explain that the thematic nature and the inter-coherence of these themes is critical in two ways: to identify those values held to be fundamental in our society, and to assist in the interpretation of the Constitution. The themes in the Constitution give life and meaning to its words and phrases. Next, I show how the FMA would be a rather peculiar amendment to the Constitution because it runs contrary to three existing constitutional themes (federalism, individual liberty, and equality) while furthering no other identifiable theme in the document. I explore what impact the FMA might have on the development of new constitutional themes and what adverse effects the FMA's abridgment of existing themes might have. For example, could the FMA's restriction of state power over marriage, coupled with its emphasis on traditional marriage, lend support for an expansive interpretation of the Commerce Clause that would allow Congress to outlaw divorce? Or for a requirement that any candidate for federal office be married? I conclude by suggesting that these questions and risks counsel strongly against adoption of the FMA as proposed.
Number of Pages in PDF File: 10
Keywords: Federal Marriage Amendment, federalism, gay marriage, Marriage Protection Amendment
Date posted: December 6, 2006 ; Last revised: November 12, 2012