girl ipsa loquitur: Constitution Schmonsititution Email me!

Sunday, July 11, 2004

Constitution Schmonsititution

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Mr. Bush wants to amend the constitution to include these words; "marriage in the United States shall consist only of the union of a man and a woman." I am not sure how to convey in writing the sort of pause this should bring to you. He wants to amend the constitution of The United States of America.

Very, very, very pregnant pause here. A moment of terrified silence even.

What Mr. Bush proposes to do would constitutionally endorse an entire class of persons (heterosexuals). Put right on them that constitutional stamp of approval. Or, if you are cynical, it would constitutionally reject everyone else. Its your choice, since it makes no difference. It is the antithesis of what the Bill of Rights was intended to do regardless of what terms you couch it in. (I can not help the picture in my mind of Mr. Bush standing next to a giant machine churning out Star-Bellied Sneetches)

Now I am going to frame the issue, since I am in charge of this little bit of the world, by first telling you what the issue is not.

This is not a question of the rightness or wrongness of homosexuality.

This is not a question of the inherent danger to children everywhere if gays are allowed to marry.

This is not even a question of democracy and what the majority of people want.

The question is this:

Why in the world does this issue need a freaking constitutional amendment?


Amendment is a very big gun, folks! It is the nuclear weapon of U.S. law, it trumps everything, it is literally in charge. After all, when the Justices of the Supreme Court sit down to decide any constitutional issue they are constrained within the bounds of the constitution itself. No matter how persuaded they may be that certain people are inherently inferior (Oh, like, I don't know... TV tort lawyers) they can not just uphold a law making it perfectly legal to punch one on the first Monday of each month. Even if every single person in the country except for TV tort lawyers voted for it. The constitution would stop them, and us.

But what if we amend the constitution? Lets add this lovely bit of prose right in there so we can get what we want with having to worry about that old constitution standing in our way; "battery in the United States shall be the harmful or offensive touching of the person of another unless the other is a TV tort Lawyer."

Once we've put that brilliant bit of thinking into the constitution, what will our justices do? They'll uphold the law as being perfectly constitutional. They have no choice. Now suppose that they never really thought you should just be able to whack a tort lawyer. They may be all be closet tort lawyers at heart. Maybe they have tort lawyers in the family. Damn liberal stacked tort lawyer loving court! What can they do about this then?

The answer is nothing.

Out little amendment has made it facially constitutional to subject some people to a different set of rules than others. That simple. The justices don't get to grapple, they just have to comply. It is impossible for the constitution, itself, to ever be unconstitutional. And the only way to change it is with a new amendment. A counter amendment. If the amendment is a nuclear weapon, we are now at constitutional nuclear war.

Back to our question. Why the heck do we need to roll out the big guns? The majority of people in this country are opposed to gay marriage. Isn't that enough to stop it? Mr. Bush doesn't think so and he is probably right.

His fear is that every time this equal protection question comes up in state court the decisions are going to allow gays to marry. (I have to laugh at the irony here, a republican wanting to strong arm states into compliance with the federal scheme?) Then it will come up in appellate courts, applying state laws, and the decisions will stand. And this horrible blight of lawfulness will spread all across the country, unchecked by popular opinion, blanketed by the protection of the states constitutions.

In other words, Mr. Bush wants to haul out the big guns to kill this thing quick because it's the only way he can kill it. Every time this issue comes up, courts of reason are going to hold that to deny one person the rights and privileges afforded to another is a blatant denial of equal protection and patently unconstitutional.

The whole point of equal protection is an historical recognition that some times the majority is not right. Sometimes the minority, unpopular smart mouthed red-headed step child that it is, has the right idea. Have you noticed how up to now all the changes have extended constitutional protection, not limited it? (Oops, I forgot about prohibition. THAT was a good idea)

So if Mr. Bush has his way and rewrites the constitution to reflect the opinion of the MOB, I believe that we will all be diminished in a fundamental way. This amendment "fall out" is going to hit every one of us. Once the taboo is off the amendment process everyone with an agenda, a lobby, and some popular support will be seeking to do the same thing. How do you like this one?

"ARMS in the United States shall be defined as only those weapons which existed on or before the year 1791."

8 Comments:

Anonymous Anonymous said...

This comment has been removed by a blog administrator.

3:21 PM  
Anonymous Anonymous said...

While your lunacy is self-evident to those of us that know you, it might not be wise to publish it on the internet. I hope your comments in this article were meant as mere entertainment for the lemmings you profess to hate; because your analysis of the Constitution and how it is amended shows a lack of understanding that quite frankly surprises even me - one of your dearest fans.

The language of the Constitution allows for amendment in only one of two ways.

The first method requires a proposed amendment be submitted to both houses of Congress, where the bill must passed by a 2/3 majority vote in each house. Once the bill has been passed by Congress, it is given to the states to ratify. This is the process that has been used to pass all of the current constitutional amendments.

The second method requires that a Constitutional Convention be called by two-thirds of the legislatures of the States, that Convention must then propose one or more amendments. These amendments are then sent to the States to be approved, and they must be passed by three-fourths of the State legislatures.

Regardless of which of the two available avenues is selected, the proposed constitutional amendment must be ratified by three-fourths of states.

Keep in mind that at no point does the President play a role in the formal amendment process - while he can express his opinion in support of an amendment - he cannot veto a proposed amendment, nor a ratification. And he is powerless to amened the Constitution by executive order.

So while your fear of the President and his opinions may be well founded, your argument and analysis of the situation are baseless. There is no chance that Super George will ever be able to constitutionally insulate his rednecked bible-belt heterosexual cronies from the blight of homosexual marriage - except with the help of two-thirds of his friendly neighborhood Congress and 38 of his favorite State legislatures.

That is the beauty of our system. While not a ture Democracy, our Republic lets us - the people and our elected representatives - decide if we don't want gay marriage to be legalized. Let the process take its course and the chips fall where they may, but leave the Constitutional arguments to those of us that understand the process.

7:28 PM  
Blogger Girl Ipsa said...

That is very interesting, School-House-Rock Boy, but can you say it without singing?

9:04 PM  
Anonymous Anonymous said...

". . .I'm just a bill.
Yes, I'm only a bill.
And I'm sitting here on Capitol Hill.
Well, it's a long, long journey
To the capital city.
It's a long, long wait
While I'm sitting in committee,
But I know I'll be a law some day
At least I hope and pray that I will
But today I am still just a bill. . ."

9:47 PM  
Blogger Rainbowgrrrl said...

Skaterboy, you disappoint me.
First of all, I am quite confident that LegalDiva has a much deeper understanding of the constitutional amendment process than her over-simplified analysis of the issue in question conveys in this case.
Second, do not try to convince readers that you have a stronger grip on the process than she does, I know you don't.
Third, you have clearly allowed your aversion to and contempt for same-sex marriage to get in the way of logic and reason, as you have completely missed LegalDiva's point.
Finally, what stunned me the most about your comment was the fact that after you and I have sat next to each other in class for over a year, after you have come to know me more closely, after you have met my spouse and learned of our relationship, after you have witnessed the legal discrimination and injustice we have been facing and seen its direct effects on me emotionally, you still seem to think that the mere possibility of the government aknowledging our relationship and awarding us the protections and responsibilities we deserve warrants a Constitutional Amendment.
I thought we were friends, but that, Skaterboy, hurts my feelings.

6:17 PM  
Anonymous Anonymous said...

Skaterboy is a nice moniker, but I prefer Anonymous. It fits my current state of existence.

I truly do apologize that my comments hurt your feelings. As Napoleon Dynamite might say, “satirical comedy is not one of my best skills.” I promise to perfect my lagging skill.

I must say that you have taken the meaning of my post all wrong. It was only a rebuttal to Legal Diva’s lacking analysis of the Constitutional amendment process -- it was lacking and over-simplified. It was also an opportunity to argue with her and not a true discussion of my feelings on the issue of gay rights. I support you my wannabe Canadian friend, I always have and always will. Equality is the only true answer. I am neither adverse to nor contemptuous of gay marriage; and if you speak with the know-it-all Legal Diva about this I trust she will give you my true opinion on the matter. Logic and reason are my middle name.

Besides, I have never once joked about your life and your choices. But I do recall numerous Mormon and polygamy jokes passing your lips over the past few years. Many nights I have run to my car and left, only to cry all the way home because of your insensitive religious intolerance. I remain crushed.

( I hope my sarcasm skills are apparent )

Take care wannabe Canadian and come visit us at the wannabe law school we all call home.

1:28 AM  
Blogger Rainbowgrrrl said...

Well, I am glad you find this issue entertaining. But then again, gays have always been the butt of most jokes (pun intended).

As for the whole Mormon thing, I can see, now that you have outed yourself to me, how my slurs were wrong and offensive. Believe it or not, but we have a lot more in common than might meet the eye. Not only is there the whole nature/nurture/lifestyle choice issue, but Scalia seems to think that the ultimate freedom to express one's gayness would inevitably lead to the ultimate freedom to express one's Mormon-ness. (What's interesting is the fact that he seems more threatened by your kind than mine.)

So why don't you come visit my little wannabe family in our new little wannabe house? We'll watch Latter Days and have a discussion about our differences and, more importantly, our similarities.

8:44 AM  
Blogger Rainbowgrrrl said...

This comment has been removed by a blog administrator.

8:44 AM  

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