USS Clueless              Voyages of a restless mind

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Stardate 20010710.1257 (On Screen): In the 1970's and 1980's there was a period when there was a flurry of really unpopular court decisions and a lot of people responded by saying "Well, then, let's pass a constitutional amendment to overrule that." Two which spring to mind were a suggested constitutional amendment to ban school busing to assist integration, and a constitutional amendment to ban burning of the American Flag. I had hoped we were past that kind of foolishness, but apparently we're not. Fortunately, the Founders made the amendment process a difficult gauntlet to pass, which is as it should be.

The US Constitution has been amended 27 times, so the process works. In some cases amendments have sailed through the system: the 26th amendment (18 year old vote) was approved by Congress in January of 1971 and was ratified in June of that same year. But the process requires approval by both houses of Congress and by the legislatures of three quarters of the states (meaning 38 of 50) and this means that the need and worth of the amendment has to be very broadly acknowledged to have a chance. The nearest an amendment has come without passing in recent past was the ERA which got 36 legislatures and then stalled and eventually timed out.

The flag-burning amendment was a case of political grandstanding by the right, a sort of holier-than-thou attempt to embarrass liberals by daring them to vote against the flag. It was blatantly transparent and a gross misuse of the amendment process, and it did as intended put the more rational members of Congress in a bind. Then Bob Kerry of Nebraska stood in front of the Senate on his artificial leg, which replaced the real one he lost while winning the Medal of Honor in VietNam, and denounced the amendment for what it was. His patriotism was beyond reproach (they do not give Medals of Honor out easily) and that then gave political coverage to the majority in the Senate who knew they should vote against this. I was thoroughly disgusted by the whole episode. (And the ironic thing about the whole issue is that according to US law, old flags are supposed to be disposed of by burning. You're not supposed to just toss them in the trash.)

The Amendment process has historically been used for two things: to expand the rights of US citizens and to take care of administrative issues which had previously been unclear. At least half the amendments expand our rights over those in the base constitution, including such hallowed rights as trial by jury (6), due process of law (14), voting rights for women (19), and abolition of slavery (13). Others have dealt with issues like direct election of the Senate (17), limitation of presidential terms (22), and presidential succession (25). In the history of the Union, only one amendment was intended explicitly to restrict citizen rights, and that was the 18th amendment.

Prohibition of Alcohol was one of the most misbegotten experiments the US has ever tried. It lead to rampant crime but no noticeable decrease in consumption of alcohol. It was ratified in 1919, and repealed by the 21st amendment in 1933. (The 21st amendment took less than a year to ratify.)

The Amendment process is not intended to be a way of encoding a specific political agenda into the Constitution so as to bypass the courts, and attempts to do this are doomed to fail even if they are ratified. That is the lesson of Prohibition. Fortunately, the hurdles needed to pass an amendment are sufficiently high that it is exceedingly difficult for a misbegotten one like the "Federal Marriage Amendment", which would ban gay marriage, to get ratified. It shouldn't even get a vote in Congress, who should politely nod their heads and then ignore these idiots. (discuss)