Unconservative constitutional amendments
Unconservative constitutional amendments by Steve Chapman
Copyright by The Chicago Tribune
Published May 21, 2006
Conservatives, almost by definition, have an appreciation of the past: They want to conserve valuable traditions and principles. But one of the paradoxes of many people who go by that name is that they are forgetting essential precepts of their own philosophy. Their current eagerness to amend the U.S. Constitution, not once but twice, stems mainly from impulses that are anything but conservative.
On Thursday, Republicans in the Senate Judiciary Committee pushed through the Federal Marriage Amendment, which would bar weddings except those involving one man and one woman. It would forbid any state from permitting marriages between same-sex partners.
Next in line is an amendment to prevent desecration of the flag by giving Congress the power to outlaw it. That would overturn a 1989 U.S. Supreme Court decision--supported by Antonin Scalia, the conservative's conservative--that flag burning is a form of political protest covered by the 1st Amendment.
If there is anything American conservatives should revere, it's the U.S. Constitution, a timeless work of political genius. Having provided the foundation for one of the freest societies and most durable democracies on Earth, it shouldn't be altered lightly or often.
Yet in recent years, proposals to revise it have been common, almost all of them coming from the right--to allow officially sponsored prayer in public schools, to establish new rights for crime victims, to limit congressional terms, to require a balanced budget, and now these.
The framers of the Constitution didn't intend for their creation to be preserved in amber for eternity, which is why they included a procedure for amending it. But their descendants have made appropriately sparing use of that provision, refusing to clutter the document with passing fancies that would later be regretted. As a rule, changes should be made only for important and enduring purposes in keeping with the fundamental spirit of the document, or to address serious practical problems in the operation of government.
It made perfect sense to amend the Constitution to abolish slavery, extend the vote to women and 18-year-olds, and allow for filling a vacancy in the vice presidency. It did not make so much sense to amend it to bring about Prohibition or to prevent Congress from raising its own pay.
Not only were the latter two comparatively minor purposes, but they could have been addressed by means short of fiddling with the Constitution: alcohol consumption through state or federal legislation, and congressional pay through voter retribution against lawmakers who get too greedy.
The latest causes likewise fail to fit the criteria for such drastic action. Flag desecration is a rare and inconsequential phenomenon--the Citizens Flag Alliance cites only a dozen petty incidents last year, almost all of which could be punished as arson or theft. To think a problem of this minuscule scale warrants a constitutional amendment is to turn respect for the flag into outright idolatry.
Same-sex marriage at least is a matter that affects millions of people. Supporters of the measure fear activist judges will discover a new right of gay couples to marry, which will spread like avian flu across a defenseless nation. In fact, the outbreak remains contained within a single, famously liberal state, Massachusetts. And it refuses to grant licenses to out-of-state couples.
In time, other state courts may decree the availability of same-sex marriage. But one principle of conservative government is not to use the ultimate remedy when modest ones are sufficient. In this case, legislatures or voters can always amend their state constitutions to ban gay unions, as 13 states have done just in the last two years.
Meanwhile, the federal Defense of Marriage Act says states that ban same-sex marriages may refuse to recognize those performed elsewhere. So the only possible justification for a federal constitutional amendment would be if the Supreme Court were to proclaim the inalienable right of gays to marry--which is about as likely as Ruth Bader Ginsburg quitting to join the rodeo.
"In the statesman, prudence is chief among virtues," wrote conservative philosopher Russell Kirk. "Liberals and radicals, the conservative says, are imprudent: for they dash at their objectives without giving much heed to the risk of new abuses worse than the evils they hope to sweep away."
In this instance, the potential harm is that by promiscuously amending the constitution, conservatives will not only erode respect for the document but make it easier for liberals one day to pass amendments of their own. If conservatives succeed, they may one day lament trading their birthright for a mess of pottage.
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E-mail: schapman@tribune.com
Copyright by The Chicago Tribune
Published May 21, 2006
Conservatives, almost by definition, have an appreciation of the past: They want to conserve valuable traditions and principles. But one of the paradoxes of many people who go by that name is that they are forgetting essential precepts of their own philosophy. Their current eagerness to amend the U.S. Constitution, not once but twice, stems mainly from impulses that are anything but conservative.
On Thursday, Republicans in the Senate Judiciary Committee pushed through the Federal Marriage Amendment, which would bar weddings except those involving one man and one woman. It would forbid any state from permitting marriages between same-sex partners.
Next in line is an amendment to prevent desecration of the flag by giving Congress the power to outlaw it. That would overturn a 1989 U.S. Supreme Court decision--supported by Antonin Scalia, the conservative's conservative--that flag burning is a form of political protest covered by the 1st Amendment.
If there is anything American conservatives should revere, it's the U.S. Constitution, a timeless work of political genius. Having provided the foundation for one of the freest societies and most durable democracies on Earth, it shouldn't be altered lightly or often.
Yet in recent years, proposals to revise it have been common, almost all of them coming from the right--to allow officially sponsored prayer in public schools, to establish new rights for crime victims, to limit congressional terms, to require a balanced budget, and now these.
The framers of the Constitution didn't intend for their creation to be preserved in amber for eternity, which is why they included a procedure for amending it. But their descendants have made appropriately sparing use of that provision, refusing to clutter the document with passing fancies that would later be regretted. As a rule, changes should be made only for important and enduring purposes in keeping with the fundamental spirit of the document, or to address serious practical problems in the operation of government.
It made perfect sense to amend the Constitution to abolish slavery, extend the vote to women and 18-year-olds, and allow for filling a vacancy in the vice presidency. It did not make so much sense to amend it to bring about Prohibition or to prevent Congress from raising its own pay.
Not only were the latter two comparatively minor purposes, but they could have been addressed by means short of fiddling with the Constitution: alcohol consumption through state or federal legislation, and congressional pay through voter retribution against lawmakers who get too greedy.
The latest causes likewise fail to fit the criteria for such drastic action. Flag desecration is a rare and inconsequential phenomenon--the Citizens Flag Alliance cites only a dozen petty incidents last year, almost all of which could be punished as arson or theft. To think a problem of this minuscule scale warrants a constitutional amendment is to turn respect for the flag into outright idolatry.
Same-sex marriage at least is a matter that affects millions of people. Supporters of the measure fear activist judges will discover a new right of gay couples to marry, which will spread like avian flu across a defenseless nation. In fact, the outbreak remains contained within a single, famously liberal state, Massachusetts. And it refuses to grant licenses to out-of-state couples.
In time, other state courts may decree the availability of same-sex marriage. But one principle of conservative government is not to use the ultimate remedy when modest ones are sufficient. In this case, legislatures or voters can always amend their state constitutions to ban gay unions, as 13 states have done just in the last two years.
Meanwhile, the federal Defense of Marriage Act says states that ban same-sex marriages may refuse to recognize those performed elsewhere. So the only possible justification for a federal constitutional amendment would be if the Supreme Court were to proclaim the inalienable right of gays to marry--which is about as likely as Ruth Bader Ginsburg quitting to join the rodeo.
"In the statesman, prudence is chief among virtues," wrote conservative philosopher Russell Kirk. "Liberals and radicals, the conservative says, are imprudent: for they dash at their objectives without giving much heed to the risk of new abuses worse than the evils they hope to sweep away."
In this instance, the potential harm is that by promiscuously amending the constitution, conservatives will not only erode respect for the document but make it easier for liberals one day to pass amendments of their own. If conservatives succeed, they may one day lament trading their birthright for a mess of pottage.
----------
E-mail: schapman@tribune.com
posted by Carlos T Mock at 9:10 AM
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