Originally published in the
November 25, 2004
I don’t know how many constitutional amendments have historically been before Congress, but in the last two decades it almost seems Congress has been flooded with them.
I did a Google Search and a search of the House of Representatives web site for “constitutional amendment”; both yielded thousands and thousands of results. I narrowed my search to the House Judiciary Committee and got a mere 6652 hits. However, I had a hard time finding more descriptive material in them. I went back to the Google search and looked into several of the first 80 items. From various sources I succeeded in finding ten currently proposed amendments.
Marriage Protection Amendment (H. J. 106)
Constitutional Rights for Victims (S.J. Res. 1, H. R. Res. 10)
Desecration of Flag (S.J. Res. 4, H.J. Res. 4)
Balanced Budget (H.J. Res. 22)
Religious Freedom (H.J. Res. 46)
Continuity of Government (H.J.Res. 83)
Naturalized Citizens for President (H.J. Res. 104)
Natural Born Citizen Act (S.2128)
Direct Election of the President (H.J. Res. 109)
Some readers will think all these amendments should be adopted and some will think some of them are frivolous. I put the relevant House or Senate bills after most of these. You can find their text, current status, and related information by searching from The Library of Congress' Thomas by bill number or keywords.
I didn’t put a bill number by Abortion Ban because I could not find a bill that seemed to directly relate to it. All the bills I scanned seemed either to limit it or limit its prohibition.
I think we should ask four questions about any proposed amendment to the Constitution.
1. Does it define the structure and purpose of government?
2. Does it preserve the checks and balances?
3. Does it extend the power of government or does it extend the rights of persons?
4. Will it really work?
If you read the original Constitution, you will find that it mostly defines how the government should work and defines broadly what functions each of the three branches has. It doesn’t get into details of what people may or may not do; those are left to particular laws, their administration, and their judicial review.
We who were fortunate enough to take civics and American history learned repeatedly that the framers of the Constitution did not want one branch of the government to dominate the other. They were especially wary of a king-like executive. They were divided on how strong the federal government should be.
The first ten amendments (The Bill of Rights) were to correct a flaw many critics felt the original Constitution lacked – protection of the people from an all-powerful government. Unfortunately, although Congress thought it had a clear vision of what those rights should be, many people have distorted them to either claim a greater right than Congress intended or claim a right does not cover certain situations.
Will an amendment really work? History gives us mixed lessons on this. The amendment that flopped the most was Prohibition – it really was interpreted by a large number of people as a restriction of their freedom. On the other hand, the Fifteenth Amendment, the right to vote regardless of race or color, took decades to be enforced. Some feel that it is still not uniformly enforced in all States.
Let’s take a quick peek at some of the amendments I listed and see how they satisfy my four questions.
Marriage Protection Amendment
It could be argued that this defines a purpose of government, but that is a stretch. It really is an extension of the power of the federal government at the expense of individuals and the states.
The best comment I found was by Rep. Jim Davis of Florida. “Personally, I believe marriage should be a bond between a man and a woman; however, I voted against the Federal Marriage Amendment because I also believe the United States Constitution should protect rights, not deny them, and states should have the right to decide whether same sex marriages should be recognized within their borders.”
If it is to be considered an extension of people’s rights and a protection of marriage, then maybe the first sentence should read “Marriage in the United States shall consist solely of the union of a man and a woman and they shall be considered equal partners.”
Will it work? It certainly won’t prevent two men or two women living together.
Constitutional Rights for Victims
This amendment enjoys bi-partisan support. It essentially guarantees that victims of violent crimes be informed of proceedings against the accused, be allowed to heard at public proceedings, and be protected from further injury. It does have a loophole about restrictions “dictated … by compelling necessity.”
It definitely extends the rights of some people though others would say it limits the rights of the accused.
As to preserving checks and balances, the judiciary prefers a statutory approach to victims' rights over a constitutional amendment.
This is the wolf in sheep’s clothing of amendments. In the guise of protecting freedom it extends the power of government to promote religion. The catch is the use of “people” instead of persons, such as in “The people retain the right to pray…” Does this mean that if the majority determines that a public gathering will have a Christian, Jewish, or Muslim prayer, then the minority must sit quietly by while a prayer that they find offensive is given? Is the “people” a local government that will specify the prayers? Would an evangelical Christian be happy if all local government functions began with a Muslim prayer?
Special Elections/Appointment (Continuity of Government)
Naturalized Citizens for President
Natural Born Citizen Act
Direct Election of the President
These are the only amendments in my list that I think really satisfy all of the questions I posed. My only caveat is, will they work as intended or will they have some serious unintended consequences? The Continuity of Government is opposed by many representatives because it doesn’t guarantee quick elections to replace representatives. The Naturalized Citizen amendment is called the “Schwarzenegger Amendment” but it could apply equally to Jennifer Granholm, the Canadian-born, Democratic governor of Michigan. The Natural Born act is more limiting in that applies to people whose citizen parents happened to be elsewhere at the time of their birth or to people who immigrated as children. Direct Election essentially abolishes the Electoral College.
Let’s hope that these four get more attention than the others and that Congress and the State legislatures deliberate them openly and honestly.