Constitutional Amendments: Government Power Versus Personal Rights

Originally published in the
Reader Weekly
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)
Abortion Ban
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.

Religious Freedom

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.

Religious freedom and commerce

Much is being written about serving gays violating a merchant’s freedom of religion.  But what is the real question here.  Is the merchant being forced to serve people he or she doesn’t like or being forced to participate in activities that he or she doesn’t like.

The latest case I’ve seen is about a photographer being forced to photograph a gay wedding.  In this case, the photographer is being requited to participate in something he or she does not approve of.

On the other hand, if two men showed up at the studio can the photographer deny them service?  Not if they act as any two buddies might having their picture taken.  If they put their arms on each other’s shoulders the photographer should not have a complaint.  But if they insisted on a picture of them kissing each, then the photographer would have a complaint.

Similarly with a baker being asked to bake a wedding cake.  If two men showed up to order a wedding cake, then the baker should provide it, even if he knew they were gay.  However, if they asked him to put two male figures on the top of the cake, then the baker now becomes a direct participant in the choice of the two men.

Suppose a neo-nazi asks a Jewish baker to make a cake with a swastika on top. The baker has every right to refuse on both religious and ethical grounds.  However, if the neo-nazi just asks for a cake off the shelf, then the baker should serve him.

Suppose a Roman Catholic grocer is asked to deliver groceries to a nudist camp.  He has every right to refuse.  However, if one of the nudists comes to his store fully clothed to buy groceries for the camp, then the grocer should serve him.

Essentially, we should not be expected to participate in activities of which we disapprove, but we can’t refuse to serve those of whom we disapprove when they are acting in a socially acceptable manner.

A good case in point is the shock jock, Fred Tupper, in “Little Mosque in the Prairie”, who spreads all kinds of misinformation about Muslims.  He is welcome in Fatima’s restaurant, as long as he doesn’t spout off too much.

An op-ed on the too short history of Pakistan's religious tolerance

My friend M. Imran Hayee wrote a op-Ed in the Duluth News Tribune, 2016-12-04 warning about a slide to religious intolerance under a Trump government.  He notes how intolerant religionists destroyed Pakistan's thriving, tolerant democracy.

See http://www.duluthnewstribune.com/opinion/local-view/4171646-local-view-america-must-cling-its-founding-principles-freedom-and.

Religion, politics, and corruption

Mustafa Akyol in Islam without Extremism wrote that when politics interfered with Islam then Islam became narrow and restrictive.  When politics let Islamic scholars have more open discussions, then Islam, culture, and commerce flourished.

In the United States we have restrictive religions corrupting politics, and many believe that if they get their way, the U.S. will be a less pleasant place to live for those who don’t hold to these restrictive religions.

For the latter, see How to Be Secular: A Call to Arms for Religious Freedom, by Jacques Berlinerblau.  He doesn't call for no religion, but asks that people be tolerant of other religions and wary of religions that want their way for everybody.

For the latter, see How to Be Secular: A Call to Arms for Religious Freedom, by Jacques Berlinerblau.

Are atheists their own worst enemy?

“This is why the more extreme atheist groups, with their penchant for mocking all believers, are so hazardous to secularism’s already failing health.”

Jacques Berlinerblau, “How to Be Secular: A Call to Arms for Religious Freedom”, p. 196, section “Understand the Value (and Etiquette) of Coalitions"

Freedom of religion means freedom of others to believe differently

Many are complaining that this or that law is impinging on their freedom of religion.  However, some of these same people believe they have a right to impose their religious views on others through law.

Those who wish to impose their views on law seem to forget a tenet of Protestantism - the right to interpret the Bible for yourself, not just take on faith what the church tells you.  So, why is one Protestant church telling another Protestant church how to interpret the Bible?

How portable should customs be?

Some Muslim women have sued their employer because they were required to wear a certain uniform. They said the uniform violated their religious freedom. Would a Muslim country allow a western women to wear whatever she chose?

It has long bothered me that Americans are supposed to adopt certain customs in other countries, but non-Americans should be allowed their own customs in the U.S. We should eat in a certain way in Japan; but Japanese should feel free to slurp their noodles and soup in the U.S.

I remember learning in school that U.N. envoy Ralph Bunche graciously accepted the sheep's eye in a stew while he was in North Africa. But will a Muslim accept a ham dinner in the U.S.? If not, I should be freely able to decline a sheep's eye.

Closer to home, some people wear their shoes in their houses, and some don't. Many of the latter request that their guests take off their shoes. Some of these latter even insist on taking off their shoes when their hosts are wearing shoes, often cluttering up a hallway with their shoes.

Che paese vai, che usanze trovi! Whatever country you go to, adopt the customs that you find. Or, when in Rome do as the Romans do.

But if the Romans are throwing the Christians to the lions, should you do likewise?

Addendum 2009-07-26
As I was planning a similar entry today, I double-checked the Italian phrase above. I made two mistakes, one in word order, the second in making a word plural. The correct phrase is "Paese che vai, usanza che trovi."