Judge Wilkinson is wrong

Judge J. Harvie Wilkinson opposes passage of Anti-gay Marriage amendments, but his argument strikes me as fallacious. He correctly criticizes the judges who started this by entertaining suits based on the specious claim that disallowing same-sex marriage was a constitutional violation. But then opposes the only meaningful way those who disagree with such judicial activation have to counter it.

It would be altogether understandable for Congress and state legislatures to counter this constitutional excess with constitutional responses of their own. Yet it would be the wrong thing to do.

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, as the Federal Marriage Amendment does.

I agree with him in principle, but I'm not so sure the framers really intended it the way it has turned out. They gave precious little attention to clarifying the role of the courts. The doctrine that the courts as the interpreters of the Constitution is not stated in the document. It was simply asserted by John Marshall and everybody else went along.

I suspect that the Framers expected it to be much easier to amend the Constitution than it has proven to be with a greater number of states in the Union. So people have turned instead to the states where it is much easier to bring them to a vote.
Judge Wilkinson's claim that the amendment route will lock us into these choices is to ignore the fact that they were able to be adopted in the first place. He writes:

To use the Constitution for prescriptions of policy is to shackle future generations that should have the same right as ours to enact policies of their own. To use the Constitution as a forum for even our most favored views strikes a blow of uncommon harshness upon disfavored groups, in this case gay citizens who would never see this country's founding charter as their own.

So his real purpose here is to make the Gay Rights argument once more that the rest of us should validate their unions as the equivalent of a traditional marriage because the Constitution says so, and we shouldn't change it because, well, you shouldn't change the Constitution. If that sounds like a tautology, it is.

In the end, the problem is created by activist judges who use judicial review to make up their own legislation and pass it without consulting with the people or their representatives. When judges do that, they invite being overruled through constitutional amendments, because that's all we have left.