Shortcircuiting Consensus

Unlike ordinary statutes, for which change requires only a simple majority of those attending a legislative session, constitutional change usually demands some form of qualified or raised majority. For example, Canada's Constitution Act, 1982, provides more than one amending formula. For most subjects the so-called 7-50 rule applies, namely, at least seven of the ten provincial governments must agree to a proposed amendment approved by the federal Parliament, provided that these seven provinces contain at least fifty percent of Canada's population. (This would prevent the other provinces from ganging up on Ontario and Québec, which together contain most of the country's people.) Other subjects, such as the admission of a new province into confederation or the status of the monarchy, require unanimous provincial consent.

Similarly, the United States Constitution allows for two possible amending procedures. First, a proposed amendment must receive the approval of two-thirds of both houses of Congress and then be ratified by three-quarters of the state legislatures. Alternatively, two-thirds of the state legislatures may call on Congress to convene a convention to propose amendments to the Constitution, a procedure which thus far has not been successfully employed. These procedures are obviously very high hurdles which have prevented the vast majority of proposed amendments from being adopted. Since 1791, which saw the approval of the first ten amendments, containing the Bill of Rights, the Constitution has been successfully amended only seventeen times.

Why should the hurdles be raised so high? Why not bring constitutional and statutory change under the same majoritarian requirements? Because a constitution is supposed to be the stable backdrop for ordinary politics. The late British political scientist Sir Bernard Crick defined politics as the peaceful conciliation of diversity within a given unit of rule. It is at best an untidy process of give and take among potentially antagonistic actors on a public stage attempting as well as they can to avoid coming to blows. But if the political process is intrinsically fluid, the public stage on which it takes place should be fairly permanent and command broad consensus among the participating citizens.

Under most circumstances our political actors debate the broad aims and finer points of public policy while agreeing on the larger constitutional context in which debate occurs. Sometimes, of course, the system itself is up for discussion, as occurs regularly here in Canada with respect to the federal-provincial division of powers. But the system itself, along with such supportive traditions as the rule of law and loyal opposition, is supposed to be a durable fixture on the political landscape. Accordingly, it ought not to be changed lightly. It should be amended only when a favorable consensus can be achieved, and if that consensus is not forthcoming, then the constitution remains as it is.

However, what if a particular group aspires to change the constitution but the public consensus for the status quo stubbornly refuses to budge? Well, obviously one can admit defeat and carry on as before. But one might also go to the courts and attempt to pursue one's cause through litigation. This has its dangers, of course, because it bypasses the messy process of working out compromises and proximate solutions to difficult and contentious issues. It risks alienating either a majority or a substantial minority who will feel unheard and unrepresented, thereby contributing to a potentially fractured polity.

On two issues the U.S. Supreme Court has unwisely moved into this dangerous territory while its Canadian counterpart has been more restrained in its comparable judgements. The first of these is the abortion issue. Roe v. Wade, the well-known 1973 decision, overrode virtually every state's abortion laws by finding and declaring a woman's right to an abortion in the “penumbras” of the Constitution. Its Canadian equivalent was the 1988 decision, R. v. Morgentaler, in which the Supreme Court of Canada struck down section 251 of the Canadian Criminal Code on the grounds that it conflicted with section 7 of the Charter of Rights and Freedoms, guaranteeing “security of the person.” Although pro-lifers naturally objected, the court's ruling did not go so far as to assert a woman's indefeasible right to an abortion, leaving considerable leeway for Parliament to enact a new abortion law that would conform to the Charter's guarantees. Then-Prime Minister Brian Mulroney's effort to come up with such a law was unsuccessful, and today Canada is one of a very few countries whose laws are eerily silent on abortion. Since then no government of any party has been willing to touch the issue. But this, of course, is not the Court's fault.

The second issue is the definition of marriage, and here Canada preceded the U.S. by a decade in having to deal with the issue at the judicial level. In 2003 the federal government requested a ruling from the Supreme Court of Canada whether it was obligated to recognize same-sex marriage under the Charter. Such “reference decisions” are not possible under the U.S. Constitution, but they are permitted in Canada, where our governments—federal and provincial—are permitted to seek the Court's opinion in the abstract. The following year the Court ruled in Reference re Same-Sex Marriage (2004) that Ottawa's proposed marriage reform satisfied the Charter, but it declined to address the crucial question whether the Charter obligates the government to open the definition of marriage to same-sex couples. In this once again the Court left the issue in the hands of the people's political representatives.

Suffice it to say that the U.S. Supreme Court's decision in Obergefell v. Hodges was not nearly as restrained as that of its Canadian counterpart. The short- and long-term implications of this controversial ruling are still being weighed in the balance and will be for some time to come. It is worth indicating, however, that, by imposing a new definition of marriage on all fifty states, the Court has effectively amended the Constitution without building a consensus in its favor. It has thus reversed the normal burden of proof in such matters, placing the onus on those who believe that sexual complementarity is a sine qua non of marriage to justify their position. Had a federally-recognized change in the definition of marriage gone through the normal amendment process, it would almost certainly never have passed. Now, however, after the Court's ruling, any effort to return to a definition of marriage based on sexual complementarity is almost certainly impossible.

From a larger normative perspective, in which positive law must be based on something transcending mere legislative or judicial whim, it is doubtful that a government has the authority to change the definition of so basic a human institution, any more than it might extend the definition of walking to cover those who are wheelchair-bound. Yet even if we grant such a possibility, under the Tenth Amendment it is reasonable to conclude that marriage and family law belong to the individual states because they are not among the enumerated powers listed in Article 1, section 8. Once again, a constitutional amendment could conceivably be adopted to make marriage a federal responsibility, but such is unlikely under qualified-majority requirements.

The Supreme Court has once more plowed through the political thicket and imposed its will on the several states, on exceedingly slim constitutional grounds. Perhaps it is time for the people's elected representatives to clarify legally the Supreme Court's jurisdiction rather than relying on precedents established by its own assertions of supremacy in constitutional interpretation. Otherwise, there is a risk that it will continue to exacerbate political tensions that might be better addressed through legislative compromise. And that can only damage the United States' status as a representative republic.

Image adapted from Flickr.

David T. Koyzis is American born and has lived and taught in Canada for nearly three decades. He is the author of We Answer to Another: Authority, Office, and the Image of God.