Amend THIS, Pal!

by Rich Miles

November 27, 2004

There’s a very fuzzy line between elected officials’ duty to serve the needs of their constituents, and political cowardice and pandering. We’ve seen many folks in the elected classes cross that line recently, but never has the leaping back and forth been more evident or more egregious than in the arena of federal constitutional amendments.

In the past year, we’ve heard calls for amendments to our nation’s most sacred document on gay marriage and a repeal of a portion of Article 2 which requires that a candidate for president be native-born. A proposal from 1978 to give the District of Columbia genuine representation in Congress never passed, and it wasn’t too long ago that an amendment to prohibit flag-burning was being bandied about. And who remembers the ill-fated Equal Rights Amendment, first proposed in 1923 to make women legally equal to men, and which most recently wandered about in search of ratification for more than ten years before finally dying an ignominious and unheralded death?

Constitutional amendments require a 2/3 vote of both houses of Congress, plus ratification by the legislatures of ¾ of the states. In a Congress with a 54-46 party split in one house, 55-45 in the other, and in at least 38 state legislatures, we expect a level of bipartisan agreement that high on ANY issue, much less such emotionally-charged ones as gay marriage? I don’t think so.

So since it’s so unlikely that any of the current proposals will become law, let’s look at the noisiest ones currently gaining attention: leaving aside the institutionalized discrimination inherent in a federal anti-gay marriage amendment, let’s consider the flag-burning amendment, and the native-born amendment.

The flag-burning amendment was abandoned in part because it was discovered that burning was the method of choice of the American Legion for disposing of an old or damaged flag, and thus that people could have been arrested on federal charges simply for doing what the American Legion recommended.

The Article 2 proposal is really rather silly – it’s designed to aid ONE person: Arnold Schwarzenegger, who for some reason some people would like to see in the White House. It would, if passed, benefit others eventually, but in real terms, the only other person currently in national politics who would gain from it is Democratic Governor Jennifer Granholm of Michigan, who was born Canadian.

That is, unless Henry Kissinger decided to run. Now there’s a scary thought.

You know the last time we amended the Constitution? In 1992, when the 27^th Amendment was passed, requiring that there be an election between Congress voting itself a pay raise and the raise taking effect, so as to minimize conflict of interest. But Congress has gotten around the Constitution by voting themselves “COLA’s” almost every single year, because they’re not – technically – pay raises. Before that, it was 1971, when we gave 18-year-olds the vote, in an unsuccessful attempt to get anti-war demonstrators to believe they were part of the process, and thus get them off the streets.

The fact is that none of the current proposals for amending the Constitution are going to pass – and the people who author the proposals know that. The Framers deliberately made it hard to amend, in order to achieve the very goal it’s now achieving – to keep silly and dangerous laws off the books.

So don’t be fooled that your lawmakers are bravely standing up for principle when they say they favor a constitutional amendment on anything. It doesn’t require much political courage to stand up and shout for something you know is never going to happen, and in fact it usually offers an opportunity to attack your opponents when the plan falls apart. In that area, we are well-supplied with thousands of federal and state legislators across our country who lack political courage. In fact, I begin to believe it’s a requirement for the job.