First Things

The August/September First Things contains much that is excellent, but three articles are particularly good. The first, by Stephen Barr, is entitled here.

Two other pieces are also very much worth your attention. In Capital Punishment: The Case For Justice the inestimable Jay Budzizewski makes a powerful argument for the inherent justice of the death penalty. Some excerpts:

So weighty is the duty of justice that it raises the question whether mercy is permissible at all. By definition, mercy is punishing the criminal less than he deserves, and it does not seem clear at first why not going far enough is any better than going too far. We say that both cowardice and rashness miss the mark of courage, and that both stinginess and prodigality miss the mark of generosity; why do we not say that both mercy and harshness miss the mark of justice? Making matters yet more difficult, the argument to abolish capital punishment is an argument to categorically extend clemency to all those whose crimes are of the sort that would be requitable by death.

The questions we must address are therefore three: Is it ever permissible for public authority to give the wrongdoer less than he deserves? If it is permissible, then when is it permissible? Is it permissible to grant such mercy categorically?

The balance of the article is a fascinating and erudite attempt to answer those questions.

The equally distinguished Robert Bork makes a case for providing marriage with constitutional shelter in The Necessary Amendment. Judge Bork opens his essay with these words:

Within the next two or three years, the Supreme Court will almost certainly climax a series of state court rulings by creating a national constitutional right to homosexual marriage. The Court's ongoing campaign to normalize homosexuality-creating for homosexuals constitutional rights to special voting status and to engage in sodomy-leaves little doubt that the Court has set its course for a right to marry. This is but one of a series of cultural debacles forced upon us by judges following no law but their own predilections. This one, however, will be nuclear. As an example of judicial incontinence, it will rival Roe v. Wade, and will deal a severe and quite possibly fatal blow to two already badly damaged but indispensable institutions-marriage and the rule of law in constitutional interpretation.

The only real hope of heading off the judicial drive to constitutionalize homosexual marriage is in the adoption of an amendment to the Constitution.

He makes a good case. Conservatives are in a bit of a bind on this issue because they tend to be loath to tinker with the constitution. On the other hand they value tradition and perhaps no tradition is more highly esteemed than the tradition of marriage. How then can this valuable tradition be protected from complete dissolution without amending the constitution. It appears that legislative remedies are inadequate as they can easily be overturned by a single unsympathetic judge who deems any restriction of the marriage laws to be an unconstitutional infringement on the right of individuals to marry whomever they wish. That leaves conservatives like Bork with only two options: Either acquiesce to the Zeitgeist and watch homosexual marriage become a constitutional entitlement or amend the constitution now to define marriage as exclusively the union of one man and one woman.

Some ask why we should care if marriage is extended to homosexuals. How, we are asked, are we effected by an expansion of civil rights to include all citizens? A local radio talk show host said the other day that homosexual marriage doesn't affect him in the slightest and the rest of us should keep our religious views to ourselves.

In other words, if we think homosexual marriage is a good thing we should promote it in the public square, but if we think it is a bad thing then we should keep quiet about it. According to this gentleman, the only reasons one could possibly have for thinking that gay marriage is "bad" are religious reasons. Aside from the reply that the only reasons one could have for thinking that anything is bad in the moral sense are religious, one might also point out that whether one is religious or not, if he wishes to preserve heterosexual marriage and the family as we know it, changing our understanding of marriage makes the task several orders of magnitude more difficult.

As Viewpoint has argued before, once we change the definition of marriage from one man and one woman to include two men or two women we no longer have any non-arbitrary basis whatsoever for restricting marriage to just two people, or even to people. Proponents of gay marriage tend to scoff at this concern but to scoff is not to refute. If there are no rational grounds for limiting marriage to two people or to require that the blissful union involve only people it will be a mere matter of time before these conventions are challenged in the courts and when they are they'll be unsustainable. Marriage will come to mean whatever we want it to and at that point it will cease to mean much of anything at all. At that point marriage will be effectively dead.

If we agree with Bork that marriage is worth preserving then it seems that he's also correct that a constitutional amendment is, like some forms of surgery, an unpleasant but absolutely necessary measure to preserve the health of our society.