Andrew Sullivan, originalist?


Gay marriage as original intent:

Accept civil equality not as a defeat but as an opportunity: to persuade and evangelize for something beyond the civil that still respects the integrity of the civil. That’s what America’s founders intended. It is part of their genius that today’s fundamentalists simply do not understand.

Just to make sure, I thumbed through my copy of the Federalist and saw not a single reference to the sort of “civil equality” asserted by Sullivan. Indeed, as I pointed out earlier this week, homosexual behavior never had any standing in the American legal tradition other than being proscribed as “a crime against nature.” The same founders who authored the Declaration and the Constitution — indeed, the same men who fought the war to win our independence — also enacted or enforced laws in their states prohibiting sodomy. No once did any of the founders suggest that the prohibition of sodomy was unjust or ought to be repealed. So who is Sullivan — a damned Brit — to come over here and try to tell us “what America’s founders intended”?

Sullivan was reacting to Rod Dreher’s column:

Bigots are by definition people whose prejudices are irrational. Bigots are moral cretins who can’t be talked to, only coerced. One is under no obligation to compromise with a bigot, only to smash him. . . . .
That’s what we’re seeing now in California. How are defenders of traditional marriage supposed to have reasoned discourse with people who insist that there is nothing to talk about except the terms of our surrender?

One problem with conservatives is their insistence on arguing only in terms of universal, abstract values, whereas liberals do not hesitate to assert the politics of self-interest or the politics of identity.

The burden of proof in policy disputes ought always to rest with the advocates of innovation. The Burkean insight is that established law and social custom are presumed legitimate, and that revolutionaries who would overthrow the established order must first demonstrate (a) the necessity of the change to remedy existing evil and (b) some reasonable assurance that the new order would be a genuine improvement on that order which is to be destroyed. (Or, to quote Lord Acton: “Where it is not necessary to change, it is necessary not to change.”)

The argument for same-sex marriage can’t clear this hurdle, no matter how much its advocates outspend their opposition, no matter how they rewrite ballot questions in an effort to prejudice the electorate. Gay radicals argue their case in terms of direct, narrow self-interest — “We want this, therefore society must grant it” — and became enraged when society answers, “We don’t want it, and won’t grant it.”

What I’ve never understood is the insistence that the 2% gay tail must wag the 98% straight dog. Whatever the grievances of homosexuals, how do they claim authority to dictate law to the rest of society? And why do so many people react instinctively to placate the aggrieved minority? “Yes, of course — give them whatever they want!”

Why do people react like that? Because the alternative is to be called names. Fine. Call me names. Call me a bigot, a homophobe, an ignorant, right-wing holy-roller. Cowards are common enough without my joining their ranks.

(Cross-posted at The Other McCain.)