Aunt Fancy is spinning in his grave tonight

Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution or the constitution of any State, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.

So much not to like. Yet our outrage is such – and rightly so – that we may flail about to find yet more holes through which to vent. Yesterday folks were pointing out that the proposed FMA would be the first amendment to exclude, rather than include – if you see what I mean. Thought about adding my voice to that choir. Then: nah, people are sinful. Ergo, someone proposed an amendment back in the 19th century that never made the cut but was way worse. We’ll read about it in the blogs tomorrow. And Jack Balkin does not disappoint. And, since President Buchanan is somewhere in Belle ‘Bucky’ Waring’s family tree (great, great, great grand-second-uncle or something?) – it’s all in the family. She’s not a direct descendant, mind you, because Buchanan never, erm, married. Ahem: “Buchanan’s long-time living companion, William Rufus King, was referred to by critics as his “better half,” “his wife,” and “Aunt Fancy”.”

But I digress.

I would be curious to know whether Bush can legitimately be deprived of this laurel: first sitting President to support a Constitutional amendment without knowing – hence without caring – what it says.

I trust I am not misunderestimating. As we know, the silly thing is written in such a way that no one can say with confidence whether – if and when released into the wild – it would let the states decide about same-sex civil unions, or expressly forbid them from deciding. (See also: Volokh vs. Ponnuru. And the Instaprof still hopes his guy isn’t such a bad guy.)

To be a little more specific (and pace Balkin): it defies credibility – nay, it takes credibility home and makes it like a thing illegal between consenting adult males in many jurisdictions – that this pair of sentences, the FMA, is not ill-composed by design. Its drafters despair of convincing the benighted to approve irrational hatred on the plain merits. Their best shot is a thing that muddles through, disguised as a defense of federalism, then judges will read and notice it is an attack on federalism. A lot for Gary Bauer to love, if there is any chance this theocratic Trojan Horse might penetrate the Constitutional gates. A lot for Bush-Rove to love, unless it all blows up in their faces (pleasepleasepleaseplease). Hard to keep all these folks happy under the tent – squabblesome, demanding, fractious things. An ambiguous-by-design amendment proposal might be the ticket. It doesn’t just drive a wedge into the ranks of Dems, it papers over cracks in the Rep coalition. It allows you to say one thing while in effect saying the opposite – one out of each side of your mouth. Of course, eventually it will have to decided which one thing it says. But that is some judge’s problem.

So the drafters are fanatical not cynical; Bush is probably cynical not fanatical. But there have been bad men before. Passing the buck to judges is possibly a temptation that has passed this way. Has any sitting President ever before placated a strained base by advocating a Constitutional amendment without knowing what it means? More evil amendments have been proposed, fair enough. But has a proposed Constitutional amendment ever before been this badly written by design?