Conservative Judge J. Harvie Wilkinson III, of the U.S. Court of Appeals for the 4th Circuit, opines today in a Washington Post editorial that the constitution should not be amended:
The Framers meant our Constitution to establish a structure of government and to provide individuals certain inalienable rights against the state. They certainly did not envision our Constitution as a place to restrict rights or enact public policies…
He blows a hole in “activist judges” argument for supporting the amendment, saying:
Let’s look in the mirror. Conservatives who eloquently challenged the Equal Rights Amendment and Roe v. Wade for federalizing core areas of state law now support an amendment that invites federal courts to frame a federal definition of marriage and the legal incidents thereof.
[…]
The Federal Marriage Amendment has helped spread the constitutional fever to the states. State constitutional bans on same-sex marriages vary considerably in their wording, particularly with respect to civil unions. But most would repose in judges the authority to interpret such ambiguous terms as “domestic union,” “similar to marriage,” “rights, obligations, privileges and immunities of marriage,” “incidents of marriage” and so forth. Thus the irony: Those who wish to curb activist judges are vesting judges with unprecedented interpretative authority whose constitutional nature makes it all but impervious to legislative change.
Read the whole thing. And then Vote NO on NOvember 7.
Others blogging about this:
Rick Sincere
The Virginia Progressive
New Dominion
UPDATE: Others blogging about this
Equality Loudon
The Voolokh Conspiracy
SLANTblog
SW Virginina Law Blog
A Shot of Southern Comfort
The Midwestern Gentleman
Instapundit
Technorati Tags: Virginia marriage amendment
VIVIAN J. PAIGE | All Politics is Local 
Thanks for the heads-up on this piece, one which I guess will cause quite a stir.
It will be interesting now to see how many shameless proponents of this wrong-headed amendment will drop what they’re doing, so they can shout that J. Harvie Wilkinson — of all judges! — is a traitor to modern conservatism.
A great post Vivian. The question is….will reason or fanatics rule come November?
I plan to vote NO and hopefully reason will win out! I’m just sorry the NO vote will not give rights to anyone. Every American is entitled to equal rights under the law.
Buzz…Buzz
Mosquito & Terry – have you posted on my Voting NO page yet? 🙂
As others come out against this amendment, we have the opportunity to make history by being the FIRST state to have such an amendment to fail.
(I have already posted the following on Rick Sincere’s blog. Please forgive me if that is a problem.)
Mr. Wilkinson was clear to point out that “Judges began the rush to constitutionalize. The Massachusetts Supreme Court concocted a state constitutional right to marry persons of the same sex.”
When judges ignore the clear will of the poeple, as enacted into law by the elected representatives of the people, there are only two options: Constitutional Amendments, and Impeachments. I would certainly prefer the latter, but reality is against me there.
Wilkinson goes on to say, ‘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.”‘ And so it should be. But then activists bring lawsuits claiming that their constitutional rights are violated, and a judge rules those laws unconstitutional, what then? All same-sex marriages between the ruling and the passage of a constitutional amendment to overturn the judge cannot be invalidated. (No ex post facto laws.)
I have proposed a simple truce: No lawsuits, no amendments. All changes must occur in legislatures or by referenda.
Would such a truce be acceptable to you?
hey, jack. post the same on my post about this same. It has good points.
Are Massachsetts judges elected or appointed?
I don’t know. Were you asking me or Jack?
Are the lower courts of Nebraska or Washington appointed? Are the judges in the courts where the current slate of lawsuits seeking to strike down marriage laws, are they appointed? Maryland and New Jersey being a few of the state that are currently facing lawsuits. And what if they are elected? Once they are defeated through election, does not disallow all of the cases they decided? no.
Your point being what? I simply threw out the question of whether the judges in Massachusetts are elected.
I don’t know. Maybe jack can tell us. I bet the supreme court justices are appointed, but I don’t know about lower courts. I just did a very quick google search, but I couldn’t find what I wanted.
Massachusetts and Maryland judges are appointed.
Nebraska S.C. and Court of Appeals judges are appointed. I don’t know about the lower courts.
Massachusetts judges are appointed – for life.
Virginia judges are appointed for a term, after which they must be reappointed – by the Viriginia legislature.
That’s the information I was looking for. Thanks, David.