Spoons, Andrew Olmsted and Clayton Cramer rightly take the Puppyblender to task for linking favorably to the horribly misnamed “Campaign to Protect the Constitution.” That group, whose sole agenda is to promote gay marriage, facetiously equates the concept of amending the Constitution – lawfully, that is, not by judicial fiat – with “tearing it up.” I say “facetiously” because I don’t believe for a minute that the people behind this campaign would have any objection at all if Congress were to pass an amendment mandating gay marriage in all 50 states. It’s all well and good to oppose the FMA while supporting Big Gay Al’s Big Gay Marriage Amendment on policy grounds; it’s not fine to argue against one but not the other on the grounds that the Constitution should never be amended at all (except, of course, by judges).

Glenn’s own commentary involves a pretty grievous sin, as well. Quoth the Puppyblender:

It’s true that the Constitution has been amended to do other things besides expand rights, for example, but the only contraction of rights — Prohibition — was swiftly repealed. Other amendments have either been on unrelated topics, or have expanded rights.

Like the original comment to which Clayton responded, this statement is the sort of nonsense I expect from a political advertisement, a press release from GLAD, an L.A. Times editorial, or maybe even a statement by a key Democratic Party operative. From a law professor, however, I expect better. Below is a brief, not necessarily exhaustive summary of past amendments, apart from Prohibition, which have had the effect of contracting people’s rights. None have been repealed, “swiftly” or otherwise.

1. Amendment I. The Establishment Clause of the First Amendment establishes no individual rights, but does restrict the right of voters to establish an official religion, as other democracies do. Should voters have that right? Probably not, but that’s beside the point. FMA opponents don’t think you should have the right to gay marry, either.
2. Amendments XI, XIII-XVI, XVIII, XIX, XXIV, XXVI. The whole point of the Tenth Amendment was to establish “states’ rights” and individual rights to the extent not specifically enumerated by the original Constitution. Every subsequent amendment that expanded the power of the federal government has, necessarily, diluted the Tenth. Meanwhile, only two – the 11th and the 21st – have expanded the rights of the states. As explained below, the Eleventh did so at the expense of individual rights. The 21st did not, but its expansion of states’ rights was highly technical, as it did nothing beyond federalizing certain alcohol-related crimes that were crimes already under state law.
3. Amendment XI. This amendment limits the right of the individual to sue a state. Its specific purpose was to take away a right to sue a state in federal court.
4. Amendment XIII. This amendment takes away the right of a slave holder to own a slave, or even receive “just compensation” under the Fifth Amendment in exchange for the deprivation of such right. No, I’m not arguing that slaveholders should have been compensated; in my view they shouldn’t have been. The point is simply that slaveholders had property rights that were contracted as a result of the 13th Amehndment, including certain rights that could have been retained without allowing slavery to continue.
5. Amendment XIV. This amendment dilutes democracy by prohibiting the states from passing laws that courts deem unfair to one group or another. It also forces the federal government, over the objections of what is probably an overwhelming majority of the citizens, to recognize the children of illegals as U.S. citizens.
6. Amendment XVI. This amendment takes away the right of an individual to keep his own earnings and not be taxed directly by the federal government. Without it, there would be no IRS.
7. Amendment XXII. This amendment takes away the right of the voters to elect whoever they want as their President.

Like the FMA, many of the above amendments restricted both state and individual rights. Unlike the FMA, however, the individual rights at issue were rights that actually existed before the amendments came around to take them away. By contrast, the “right” to gay marriage has never existed anywhere, except in three states whose rogue judiciaries made them up. Of those three judicial missteps, two were promptly corrected by the legislature, while the third, due to that state’s unusually cumbersome amendment process, could not have been.

UPDATE: As originally worded, the last paragraph suggested that FMA would not restrict states rights that existed before FMA was enacted. This is incorrect, as the existing Constitution leaves states free to define marriage as they wish. I’ve revised it accordingly. Also, I should note that at least one of Clayton’s points is a tad weak:

And a U.S. Supreme Court ruling can (and almost certainly will) strike down state laws and the federal Defense of Marriage Act.

Clayton offers no basis for his “near certainty” on this point, so I have little choice but to presume that he has none. Even if I’m wrong, this concern would be better addressed by a narrower version of FMA than the one currently being debated in Congress.