Amending the Constitution
Michael J. Totten has an interesting essay on the push to add an amendment to the Constitution. His premise is one I can agree with:
The very idea of using our Constitution the ban anything is viscerally repulsive to me, especially when weÃ¢€™re talking about the harmless pursuit of happiness.
You donÃ¢€™t have the freedom to rape and murder and steal, nor should you. That is universal. We do not, or at least I should say that we should not, limit the freedom of our citizens unless that freedom will be used to harm another. That is revolutionary.
That’s my preference as well. It’s not enshrined in the Constitution, though. The Constitution isn’t mere legislation–banning rape, murder, and theft is left to legislatures–but rather the basic set of rules by which governing is done. Indeed, most of the seventeen amendments passed after the Bill of Rights are rather ordinary housekeeping matters: banning lawsuits against states, tweaking the Electoral College, allowing a federal income tax, prohibition–and ending prohibition–of alcohol, rules for presidential succession, and limiting Congress’ right to raise its pay. Only the three Civil War Amendments, plus the 19th, 23rd, 24th, and 26th Amendments (women’s suffrage, DC voting in presidential elections, ending the poll tax, and lowering the voting age to 18) expanded rights in any way.
Michael cites Kevin Drum’s post pointing out that President Bush has called for, at one time or another, five amendments (Flag burning, Victims rights, Abortion, Balanced budget, and Gay marriage) and quip, “He really seems to think the constitution is just a rough draft, doesn’t he?” Says Michael, “Just think. If every president supported five new amendments and they all passed, how many would we have?”
Well, a lot. But they don’t pass because the Framers created a very difficult amendment process. But, of course, the Constitution is for all intents and purposes a rought draft. For example, an Abortion Amendment has already passed. We call it Roe vs. Wade. The Supreme Court ruled, in 1973, that the Constitution had a right never before seen, to choose to abort a fetus in the first two trimesters of pregnancy. They added it as amendment to the Privacy Rights Amendment (1965), otherwise known as Griswold vs. Connecticut. As FindLaw’s Annotated Constitution demonstrates, there have been dozens upon dozens of judicial amendments to the Constitution, not just the twenty seven that show up in my copy.
If we’re going to amend the Constitution so regularly, I’d much prefer that we do it in the manner actually prescribed in the Constitution, with a supermajority of the representatives of the people in Congress and three quarters of the states having their say, rather than have it done by unelected judges. Indeed, I find this whole discussion ironic, since George W. Bush has infinitely less power to amend the Constitution than does Sandra Day O’Connor.