Charles Krauthammer, on a recent broadcast of Brit Hume's Roundtable, talking about gay marriage and the attempt to amend the Constitution to prevent it:
Well, obviously in part it's politics, but changing the definition of the oldest social institution in the human race, one that has been a man and a woman in every society for a long, long time, is a big deal. And if it's happening in a country, it's a legitimate issue and I think there is a legitimate issue here in that the president is right that judges have abrogated this decision which ought to be left to people either acting in referendum or in -- through their representatives. And that -- there are states, like Massachusetts in which it's been imposed and states like Georgia and Nebraska, where there has been a constitutional amendment where the people have spoken in large numbers and been stopped, stymied, by a judge.
But I think the answer is not a constitutional amendment, which would be in the name of the popular sovereignty, but ironically, it takes it away, because if you ever had a state in which a majority wanted to institute gay marriage, it would not be allowed to under this constitution. So it's a little bit contradictory, to act in the name of popular sovereignty and to pass a law which would extinguish.
The way you do it is change the ethos of the judiciary so that if you get the Defense of Marriage Act, which he spoke about earlier, at the Supreme Court, it's upheld and that it keeps it in one state and doesn't spread it all over the country. And having a president who nominates a guy like Sam Alito is a way in which we change that culture rather than changing the constitution.
Krauthammer is partly right. Ideally, the question of gay marriage, just like questions of abortion and assisted suicide, should be resolved in state legislatures. Unfortunately, liberals will not accept the verdict of the democratic process and are using compliant judges to, in effect, override the will of the people. There is no guarantee that the "ethos of the judiciary" would ever change, or ever change permanently. A constitutional amendment is a terrible resort, but it is the only way the people have of protecting themselves from activist judges who use their power to impose their will on everyone else.
If we were guaranteed that the Supreme Court picks for the next fifty years would be of the caliber of the last couple Krauthammer's argument would have more purchase. But given that the next several justices could be appointed by a President Hillary or Gore or Kerry, the argument that we should entrust the preservation of democracy to the Supreme Court loses all its appeal.