July 01, 2003
On amending the constitution

I see that Sen. Bill Frist has his panties in a bunch over the SCOTUS ruling in Lawrence v. Texas:


The Senate majority leader said Sunday he supported a proposed constitutional amendment to ban homosexual marriage in the United States.

Sen. Bill Frist, R-Tenn., said the Supreme Court's decision last week on gay sex threatens to make the American home a place where criminality is condoned.

The court on Thursday threw out a Texas law that prohibited acts of sodomy between homosexuals in a private home, saying that such a prohibition violates the defendants' privacy rights under the Constitution. The ruling invalidated the Texas law and similar statutes in 12 other states.

"I have this fear that this zone of privacy that we all want protected in our own homes is gradually or I'm concerned about the potential for it gradually being encroached upon, where criminal activity within the home would in some way be condoned," Frist told ABC's "This Week."

"And I'm thinking of whether it's prostitution or illegal commercial drug activity in the home ... to have the courts come in, in this zone of privacy, and begin to define it gives me some concern."


Others have addressed Frist's dimwitted "zone of provacy" concerns, so I'm not going to bother kicking him on that. What I do want to talk about is his proposal to ban something that doesn't yet exist via a Constitutional amendment. First of all, I agree with Mark Evanier, who suggests that actually amending the Constitution, something that by design is really hard to do, is more red-meat rhetoric for the true believers than an actual legislative action item. I don't know that I'd lay better than 50-50 odds of getting two-thirds of the House to pass this amendment, let alone 38 state legislatures.

The other thing that catches my eye about this proposal, as well as the on-again, off-again anti-flag-burning amendment, is that unlike almost every other amendment to our Constitution, it explicitly restricts individuals' rights rather than limiting government powers. There are really only two others that have done this:

- The 22nd Amendment, which limits Presidents to two terms. Not exactly a broad-based restriction on freedom, that.

- The 18th Amendment, which outlawed alcohol. That was so successful, it became the only Amendment to ever be repealed by a subsequent Amendment.

I suppose one could argue that he 13th Amendment, which limits the rights of those who wish to own slaves, fits this description as well. Anyone who actually wants to argue that there's a net loss of freedom in the enactment of that Amendment is welcome to do so elsewhere.

It's pretty amazing to me that after 216 years of a Constitution that has only once tried to limit individual freedoms - and failed spectacularly when it did try - that Republican politicians, who claim to cherish its spirit and intent, have made a living pushing freedom-restricting amendments to it. I know which side of that argument I want to be on. How about you?

Posted by Charles Kuffner on July 01, 2003 to Legal matters | TrackBack
Comments

I pointed out (in a blog post I'm too lazy to link to) that I didn't expect it to go anywhere either, for pretty much the same reasons. The American public doesn't really like futzing with the Constitution.

The Flag Burning amendment has been around decades, and it's pretty much defended by the hard-core libertarians and civil liberties people. It's not like gay marriage, where a big chunk of the population is uncertain about it....

Posted by: Morat on July 1, 2003 4:21 PM

What really irks me about all the stuff I keep hearing about trying to stop gay marriage before it even exists yet is how many times I've heard people state the need to "defend the institution of marriage". In what way whatsoever does the marriage of two men or two women in ANY way affect my marriage? And, frankly, if my marriage is so weak that whether or not two OTHER people get married can affect it, it's frankly indefensible.

I've said manyh times that I don't expect anyone to force churches to accept gay marriages. But, then again, the fact that the institution of marriage is so tangled up between the government and churches makes me crazy anyway. Why not completely separate the functions of the government and the church when it comes to marriage, and make the government one simply a legal, civil union, to be enjoyed by ANY two people (Yeah, I know I'm dreaming), and then allow people the option of additionally having their marriage sanctioned by their church of choice. Why have the two intertwined at all?

Just my 2 cents.

Posted by: Amy on July 1, 2003 7:43 PM

In Germany, (at least in Bavaria), you are required to have two ceremonies, one by the state, and the other by the church. Technically, the state marriage ceremony makes it legal and the church ceremony makes it kosher (OK, wrong religion, however, many theologians have determined that the original Roman Catholic church was simply a "New and Improved" Jewish faith.)

If Sen. Frist has not learned by now that people are naturally attracted to and fall in love with one another, and that one does not choose to be homosexual or heterosexual, then he needs to start doing some research on the topic. As for his concerns about prostitution, most European countries have made it somewhat legal, ranging from Amsterdam's liberal laws to Paris' ban on brothels and streetwalkers, but not "outcalls". London is the exception here, however, go to any public phone booth and you will see any number of handbills for women and their "services".

Posted by: William Hughes on July 1, 2003 8:40 PM

Interesting - I'd never though about it that way before (ie, amendments restricting govt v restriciting individuals).

Posted by: hope on July 1, 2003 10:18 PM

Frist also said "I very much feel that marriage is a sacrament", which should prevent him from legislating about it, but won't.

So, theoretically speaking, what would the Supreme Court do if in a moment of patriotic zeal an amendment was ratified that was on the face of it unconstitutional and violated what many perceive as a more fundemental right?

Posted by: Michael on July 2, 2003 7:08 AM

Nothing. The Amendment becomes Constitutional the moment it's ratified. A Constitutional Amendment, by definition, cannot be unConstitutional once it's passed.

And, by similiar definition, a proposed Constitutional Amendment is almost always unConstitutional. If it was Constitutional, why would they be trying to change the Constitution?

Posted by: Morat on July 2, 2003 12:24 PM

Couple of side notes to this issue.

First, this issue is going to be an issue sooner than we want. Vermont already has civil unions and "Full Faith and Credit" hasn't been tested as of yet. Canada has effectively legalized same sex civil unions and the EU is well along the path. It is going be interesting when cases involving foreign marriages start running into states which refuse to accept their validity. Federal court and State Department time....

Finally, Paul Craig Roberts is using it as a hook to attack Brown v. Board of Education. I remember "separate but equal" in the 50s in Deep East Texas. Two rooms in what amounted to a shack, three teachers (two were the principal and his wife), no bus service, no science, no athletics for a black population half as large as the white.

Posted by: Charles M on July 2, 2003 2:32 PM