Are Common Ethical Values Grounds for Constitutional Change?

Robert Delahunty, a constitutional law scholar at the University of St. Thomas and a former Justice Department official has weighed in on the Minnesota Marriage Amendment debate with some interesting arguments that could apply in a broad range of contexts:

http://www.startribune.com/opinion/commentaries/168215996.html?refer=y

Delahunty makes the following point:

“[W]henever the law expands the freedoms of one person or group, it necessarily contracts those of another.  .  .  .

True, people of the opposite sex are still free to marry one another even if people of the same sex can do so as well. But proponents of the marriage amendment argue that an important freedom is being lost: that of living in a social world in which marriage has a particular meaning and is related in specific ways to natural reproduction and family life.

Of course, some tradeoffs are desirable. No one now regrets that the constitutional amendment banning slavery necessarily ended the freedom to own slaves. But it is not an argument for that amendment that it expanded freedom without contracting it. It did both."

Let’s put aside for the moment the fact that I don't see such as tradeoff with abolition of slavery because slaveholders had no legitimate right to own other human beings.  What about Delahunty’s core argument that there are often tradeoffs between individual liberty and our right to live in a social world that adheres to common ethical values?   Putting aside the same sex marriage debate as well, here is perhaps a concise summary of the argument in support of constitutional changes that constrain the freedom of some individuals but at the same time allow government to create the conditions for individual as well as collective moral well being according to our religious belief:

By its decision to carry out the political and moral cleansing of our public life, the Government is creating and securing the conditions for a really deep and inner religious life. The advantages for the individual which may be derived from compromises with atheistic organizations do not compare in any way with the consequences which are visible in the destruction of our common religious and ethical values.*

Does such an argument for constitutional change make sense?  What are its implications?

* [footnote added 9/8/2012] These two sentences are I believe a close approximation of Delahunty’s argument about tradeoffs between individual freedom and freedom to live in a world that conforms to collective ethical and religious values.  These words are taken verbatim from a speech given on March 23, 1933 by Adolf Hitler who had less than two months earlier been appointed Chancellor of Germany after voters had given his National Socialist German Worker’s Party substantial support in parliamentary elections.   Hitler was asking for a constitutional amendment that would give him broad powers to infringe upon individual liberties.  This particular speech sought to persuade Catholic bishops and other religious conservatives not to oppose the proposed constitutional amendment, called the Enabling Act.  The amendment was consented to by the Reichstag later that same day.  

Comments

[Abelard Lindsey]

Its more appropriate to discuss this in the context of negative liberty vs. positive liberty.

[Rick Underwood]

Sharia Law?

[Monroe Freedman]

I have a couple of problems with the analysis.

First, where does the "important freedom of living in a social world in which marriage has a particular meaning and is related in specific ways to natural reproduction and family life" come from? And is it really "lost" because of gay marriage, when people have always been permitted to marry who have no intention of reproducing, or who are incapable of doing so because of age or other physical reasons, or who engage in serial marriages (with or without adultery along the way)?

And where does the "legitimate right" come from to prevent two consenting adults who love each other to marry each other and have the emotional, financial, and legal rights of marriage?

[Richard Painter]

The issues here go beyond same sex marriage.

Is it legitimate for the state to restrict actions and relationships of individuals that cause no demonstrable harm to others on the ground that such actions and relationships reduce the freedom of the majority to live in a society with common ethical values? What happens if a country living under a republican form of government changes its constitution to accomplish such an objective?

Putting aside same sex marriage, what does one think of Delahunty's broader point about tradeoffs and the language above that approximates what I think he is trying to say?

RWP

[Monroe Freedman]

Okay, Richard, I'll reveal my ignorance. Same-sex marriage and slavery are explicitly mentioned in your post. If we put aside same-sex marriage, what are some of the issues that are included in Delahunty's broader point?

[Richard Painter]

He says "an important freedom is being lost: that of living in a social world in which . . . "

Who says this stops with marriage only of men and women? Why not a federal constitutional amendment reaffirming sodomy laws? And another amendment allowing the government to bar marriages between Christians and nonChristians? And so on.

It is one thing to have longstanding statutes and common law that arise from a particular vision of public morality. These laws will continually be tested against the Constitution, and changing views of public morality, and these laws will some day be repealed. It is quite another thing to enshrine such laws in the constitution itself. It is even more dangerous to do so simply because one group of people seeks the "freedom" to live in a world free of what they believe to be the immorality or inferiority of others.

This line of thinking has very dangerous precedents. I have heard many arguments for the amendment that I think are silly, but Delahunty's arguments are more than that.