It's Supposed to be Difficult

[kevin_standlee]

There are times when I've been frustrated at how difficult it is to amend the US Constitution. Aside from the ten amendments that were ratified shortly after the original Constitution was adopted, the document has been amended only seventeen times in over 220 years, a rate of only one amendment every thirteen years. (And one of those amendments was actually part of the original twelve initially submitted to the states as part of the First Congress' constitutional clean-up, the "Rip Van Winkle" Amendment.) But today is not one of those times. In light of yesterday's ruling declaring California's Anti-Gay Marriage Proposition 8 unconstitutional, and the anticipated long fight heading up to the US Supreme Court several years from now, I have read people declaring with great certainty that there will be a Marriage Amendment to the US Constitution Real Soon Now that will guarantee that marriage = one man + one woman.

In a word: No.

I predict with great confidence that we'll not see a two-thirds majority in both houses on this subject. Remember, the Congress is so deeply split that it can barely agree to hold committee hearings, let alone pass amendments to the basic law of the land. And even if somehow such an amendment gets out of the Congress, there's no way that 38 states would ratify it. Oh, sure, there would be a rush as maybe as many as twenty or so state legislatures ran to ratify, but you'll never get three-fourths of the states to agree to it.

Constitutions are supposed to be difficult to change. That's one reason that California's governance is in a horrible mess. It's too easy to push constitutional amendments through the initiative process. Thus California's state constitution is a monster document full of messy contradictions and too many patches and amendments. Kudos to those states whose people adopted amendment systems that take a long time and multiple legislative sessions, so that passions of the moment can cool and demagogues can lose momentum.

For those people screaming "judicial activism!" (="The ruling didn't go my way!"), I say this: Fundamental civil rights should not be put to a public vote. If we did that, slavery would still be the law of the land in many states, anti-miscegenation laws would still be in force, and I expect that some states would have religious test laws in place that banned anyone except those with certain religious affiliations from even living in their state, let alone holding office. And for all I know, I'd be living on a reservation (and prohibited from leaving), given that I'm about 3/8 American Indian*, and thus not a proper White Man.

Incidentally, as annoyed as I am by various legislators calling for the repeal of the 14th Amendment to deal with the Brown Peril, I think their chance of success is just as low as that of those who want a Marriage Amendment.

A somewhat more achievable medium-term goal of the Cultural Conservatives might be to try again to split the Ninth Circuit Court, in an attempt to limit the "spread" of decisions coming out of California, especially if the Supreme Court decides not to take the case when it gets that far. Of the various proposals listed in that Wikipedia article, the one that would redefine the Ninth Circuit as California, Guam, Hawaii, and the Northern Mariana Islands, putting the rest of the states into a new Twelfth Circut, seems most logical to me. But I digress into political geography.

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*I don't meet the "culturally identify" portion of the Census Bureau definition of American Indian. I note my Cherokee-Chippewa ancestry in the same way that I have German, English, and Irish ancestors of which I'm aware.

Comments

[redneckotaku.livejournal.com]

I think what will happen is that the Supreme Court will take the case up when it gets that far and rule it as what it really isn't (a state's rights issue). Therefore upholding the rule as a states Rights issue, but not resolving anything. The Supereme Court can also massively change in the next five years before it reaches them, so my speculation is really a mute point

[kevin-standlee.livejournal.com]

I'm not so sure. An article I read today points out that a whole lot of the ruling appears to be pointed straight at Justice Kennedy, who will almost certainly be the swing vote on a 5-4 ruling on the matter. It will apparently be difficult for Kennedy to vote to overturn the ruling without undermining his own arguments on other cases.

(FYI, you mean "moot," not "mute.")

[redneckotaku.livejournal.com]

I meant to say moot, but I typed too fast. It will be an interesting news story for the next few years at least.

[twilight2000.livejournal.com]

That may be one of the best articles I've read on the subject - I urge you to put at least the 1st paragraph outside of the "cut" so folks can see what sort of article this is.

[kevin-standlee.livejournal.com]

Good idea; done. And thank you. My point here is not that I favor gay marriage (I do, on various grounds including that other people's marriages of any sort do not make mine less worthy). It's that constitutional change isn't a matter of momentary, short-term passions, and that this is a Good Thing.

Heck, we used to be able to amend the Westercon Bylaws in a single year with a supermajority. After a run of years with dueling amendments countermanding each other on account of fluctuating local majorities, I pushed for (and got) a change that required two consecutive years (the Worldcon method), on the grounds that there was nothing so urgent that it couldn't wait a year for reflection and review before ratification in cold blood.

[kproche.livejournal.com]

I only point this out because I know how carefully you write: the phrase "miscegenation would still be illegal" makes me twitch every time I scan that paragraph, because the reader can infer from it that miscegenation is a real thing (when genetically it does not actually exist!).

I *think* what you are trying to say is "anti-miscegenation laws would still be on the books..."

My general sentiments, as you know, are with you on this subject. That one phrase just keeps giving me pause.

[kevin-standlee.livejournal.com]

Much better wording. Fixed. Thank you.

(Actually, I'm not sure if such laws are still technically on some states' books, but they're not in force, and thus I reworded it slightly. Not all states respond to court rulings by cleaning out unenforceable laws, as I recall.)

[yourbob.livejournal.com]

I remember being in Mississippi in 199_ when slavery was repealed. Yup.

[kalimac.livejournal.com]

I would encourage all those concerned about the negative reaction to the decision to read the reactions in the South when the courts ordered racial desegregation of schools in the 1950s. The same cries of judges arbitrarily over-riding the will of the people, of rulings against the Constitution, against moral law, upsetting the balance of society, yadda yadda. And the same declarations of determined resistance, which in the end amounted to a wet noodle. There's still lots of de facto school segregation today, but the attempts to shut down entire school districts (and establish private white schools in their place) rather than desegregate collapsed pretty fast when the courts threatened to jail the school boards. The segregationists called their tactic "Massive Resistance", and it spawned one of my favorite Herblock cartoons, showing an old-time Southern white shivering in the wind at a graveyard, in front of Massive Resistance's tomb. And the caption, nod to Stephen Foster, read, "Massive's in De Cold, Cold Ground."

So it will be with this. Sixty years later, those principled bigots look insane, and today's principled bigots will look the same.

[yourbob.livejournal.com]

Thinking of people like the recently late Robert Byrd of W.VA., sometimes those "principled bigots" are looking back at those "principled bigots" as insane.

[twilight2000.livejournal.com]

Real change in a person happens relatively rarely - but both Byrd & Wallace had a real "come to Jesus" (if you'll pardon the expression) event in their lives - discovering that bigotry is *not* the direction that made sense in their lives.

If only more could have that kind of epiphany.

[yourbob.livejournal.com]

One of my main concerns, from a rhetoric perspective, is that Judge Walker (properly) relied on the 14th Ammendment for his ruling, giving the repeal advocates another talking point.

[kevin-standlee.livejournal.com]

True, but IMO it makes the repeal advocates look even battier. The change they want doesn't just require a majority (which I suspect they don't really have), but a super-supermajority.

Of course, there are those who probably would argue that the 13th-15th amendments aren't really properly ratified, on account of ratifying them was a condition of the southern states' readmission to the Union after the Civil War, and therefore, under the "contract" theory of constitutional law, it was a contract signed under duress and thus invalid. But there are a lot of constitutional wingnuts out there.

[yourbob.livejournal.com]

Look even battier to rational people, yes. But not to the people they're pandering to - the socially conservative "we hate everyone but straight white men" folks (and yes, even their women supporters, I would argue, generally believe that whole thing).

Unfortunately we rational people are only the majority, not always the majority that votes.

Sigh.

[lisa-marli.livejournal.com]

One thing I been hearing was all the Obama Hand Wringing. This judge was appointed by Bush JR! And is actually a strict constitutionalist and conservative. Don't care what his sexual leanings are, those are his JUDICIAL leanings. So this is actually all George HW Bush's Fault!
But if the judge says that the Pro Prob 8 people are blowing smoke, then they are blowing smoke. And appeals are based on what you said in your first court hearings, not on tons of new and untried evidence you try to bring in later.
PLUS he BEGGED the Pro Prop 8 people to bring in more witnesses and ideas. He wanted a Full Argument from them. And they refused and were Very Smug about it.
Which is why he slapped them down So Hard.
This is going to get Very Interesting. Strap yourself in.
PS Your marriage, no kids even dreamed of, is exactly the kind that blows the Pro Prop 8 argument out of the water. Take a bow and hug Lisa. ;) And may you have many happy years together.

[yourbob.livejournal.com]

Small correction for clarity. Judge Walker was appointed by Bush Sr (the Too Liberal one). George III is only "George Walker Bush", his dad has the added Herbert.