On Amending the US Constitution

Earlier this week — on February 24 2004 in fact — President George W. Bush started calling for the U.S. Constitution to be amended to restrict marriage to a union between a man and a woman. This is largely a knee-jerk response to officials in two states having begun to issue marriage licenses to gay and lesbian couples.

The morality of this move aside, this is a terrible idea, as it goes against the history of what constitutional amendments have been used for. As we have been reminded recently with respect to the many outright boners committed by the President’s board of economic advisors, there are many things that George W. Bush is not, and “Constitutional Scholar” may undoubtedly be added to that growing list which include economist and statistician (and, many would argue, diplomat and stateman).

I would refer the reader to Cornell University’s Table of constitutional articles and amendments. The U.S. Constitution itself does not contain a whole lot about individual freedoms and liberties. Indeed that is not its role. The articles of the Constitution itself serve to define the structure of the federal government and its relationship with the individual states.

For the protection of rights Americans have traditionally relied on Amendments to the Constitution. The best known “constitutional rights” are in fact grouped under the first 10 amendments of the constitution, which has been known traditionally as the “Bill of Rights”. This is where you’ll find mention of these:

  • Freedom of speech and religion (1)
  • Right to bear arms (2)
  • Freedom from having billeting of soldiers imposed arbitrarily (3)
  • Freedom from unreasonable search and seizure (4)
  • Freedom from self-incrimination (5)
  • Right to a fair and speedy trial (6)
  • Right to trial by jury (7)
  • Protection from cruel and unusual punishment (8)

Other amendments have followed in US history, but there is a clear pattern here of new amendments reinforcing the power of the individual and checking the power of the federal government, when those amendments concern a matter of liberty. The 13th amendment, for example, abolishes slavery; the 15th establishes that rights should not be denied on the basis of race; the 19th guarantees women’s right to vote; the 24th forbids the imposition of poll taxes and the 26th establishes that 18 year olds nationwide cannot be denied voting at the federal or state levels.

Thus, it is already well outside usual constitutional practice to have an amendment which actively restricts the rights of the people with respect to those of the federal government. This is not to say that it has never happened before, however — it has.

I am talking, of course, about the 18th amendment, which established prohibition. By this amendment the federal government established the US as a dry country. This is the single example of a constitutional amendment being used by the federal government in order to remove rights from the people.

Of course the 18th amendment is also remarkable in one respect. It is the only amendment to the US constitution which comes in two parts — the establishment and the repeal. The 21st amendment, adopted 14 years after the 18th, strikes down prohibition. I think there are a few lessons there.

Lesson 1 is that a constitutional amendment, while it may sound like a very final thing — there is after all no possible formal appeal to an amendment save to repeal it — it is evidently not. Especially in the case of the proposed marriage amendment, there is a great likelihood that it would simply be repealed later on. I’m sure that no one believed it would happen to the Prohibition amendment, but it did.

Lesson 2 is that if you’re going to go to the lengths of a constitutional amendment in order to enshrine your prejudice into the fabric of the USA, you seriously risk ending up with egg on your face. Prohibition may well have been as forgotten as the lessons it would purport to teach modern society (and by this I mean mostly the futility of the concept of prohibition) had it been a mere law; however as a constitutional amendment that has been repealed with another amendment it will stand forever as a testament to the sheer stupidity of attempting to legislate morality — another lesson decidedly lost on this administration. I need not go on further to explain how this applies to the marriage amendment, do I?

The proposed amendment itself is not really the point of the whole brouhaha. This is 2004, an election year. The incumbent is a President who, for a little over 3 years, presided over millions of lost jobs, a federal deficit which even Reagan (or Bush’s own dad) would be ashamed to put his name onto, intelligence failures (insert your own joke here) which led to massive civilian casualties of terrorism, a failing, pointless, illegal war in the Middle East from which hundreds of American soldiers are returning in body bags, and an economy which is exporting itself with his blessings. With the issues that matter being squarely against him he had to come up with a demagogical issue which would bring the votes of the uneducated and the prejudiced on his side. That, reader, is the story of how gay marriage became the hot button issue of 2004.

In a sneaky, backhanded recess appointment Bush puts Alabama’s ‘Killer Bill’ Pryor on the federal bench.

In a sneaky, backhanded recess appointment Bush puts Alabama’s ‘Killer Bill’ Pryor on the federal bench. The man’s never seen someone he didn’t want to execute, apparently. Underage, handicapped, retarded, they all make good corpses in Killer Bill’s eyes.