BY VALERIE ORLEANS
From Dateline (May 6, 2004))
Amending the Constitution: What Happens?
President George W. Bush recently announced
that he supports a constitutional amendment to outlaw same-sex marriages.
But what does amending the Constitution really mean? How does this
affect states’ rights? Gordon Bakken, professor of history
and an expert on constitutional law, answers some of the most commonly
asked questions surrounding this controversy.
Q: |
What legal issues are at
stake if President Bush succeeds in amending the Constitution
to outlaw same-sex marriages? |
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A: |
Well, there are two issues here
– one is a constitutional amendment. The rules for this
are covered in Article V of the Constitution. The other is
how the “law of marriage” is defined.
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Q: |
What is Article V? |
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A:
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Article V reads: “The
Congress, whenever two-thirds of both houses shall deem it
necessary, shall propose amendments to this Constitution,
or, on the application of the legislatures of two-thirds of
the several states, shall call a convention for proposing
amendments...when ratified by the legislatures of three-fourths
of several states, or by conventions in three-fourths thereof,
as the one or the other mode of ratification may be proposed
by the Congress....”
This is right there in the Constitution. It’s telling
you that the Federal Marriage Amendment must be approved by
a two-thirds majority of Congress and then ratified by three-quarters
of the states. It’s going to be a divisive debate.
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Q: |
What is the law of marriage? |
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A: |
The law of marriage is continually
developing, at least from a legal perspective. Previously,
when the government has tried to regulate marriage, it has
often been for discriminatory reasons. For instance, it used
to be you couldn’t marry outside of your race. However,
our concepts of morality change over time. And if Congress
can trot out morality as a basis for making amendment changes,
what’s next? That’s obviously a concern.
Laws concerning marriage have been in a constant state of
flux. For instance, look at common-law marriage. It won recognition
in an 1809 court decision and gained notice as one of the
most influential treatises in American law by 1826. Judges
increasingly considered co-habitation based upon personal
acknowledgement, eye-witness accounts and personal reputations
central to determining common-law status. If you look at gay
couples, many do live in what we’d define as common-law
marriages if they were a man and a woman.
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Q: |
Since standards on morals
seem to change, you’re concerned when they are used
to effect Constitutional changes? |
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A: |
Yes. And it rarely works. In
another case, a group motivated by moral outrage also challenged
secret marriages, such as those between people of different
“classes.” The courts, however, ruled that these
marriages also were valid.
Morality also was the reason that Comstock laws were put
on state law books to prohibit birth control. [In 1873, Congress
passed the “Comstock Law,” named for Anthony Comstock,
a crusader for his brand of morality.] A moral minority trotted
out their moral beliefs to restrict access to birth control.
Again, they launched a “purity crusade” to restrict
access and thereby deny women control of their bodies. In
1965, the U.S. Supreme Court finally declared such laws unconstitutional. |
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Q: |
When was the last time there
was an attempt to amend the Constitution? |
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A:
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In the ’80s, there was
an attempt with the Equal Rights Amendment. There was a great
deal of controversy surrounding that as well. With gay rights,
it is even more politicized. |
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Q: |
What happens when states
challenge the federal government? It seems like the states would
like to retain control. |
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A:
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It’s hard for states to
challenge the feds. For instance, when the federal government
decided that the national speed limit should be 55 miles per
hour, some states balked since states set the speed limits.
The federal government simply threatened the withholding of
federal highway dollars, and the states caved in. The problem
is that all the states feed at the federal trough, so it’s
difficult for states to take on the federal government. |
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Q: |
So adding an amendment is
pretty difficult? |
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A:
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Well, historically, it’s
not been easy and I think that’s the point. You want
people to fully understand the implications, and amending
our Constitution shouldn’t be that easy. It provides
the basis of our legal system, and while it must change with
the times, these changes should be done in a manner that is
thoughtful and intelligent. |
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