The New Republic

I'd be more sanguine about conservative constitutional crackpottery if they weren't so badly drafted. I mean, if 3/4 of my fellow citizens want to change the Constitution, fair enough. But instead of, for example, writing the flag-burning amendment to simply give Congress (or preferably the states) the power to enact laws banning flag-burning, conservatives propose amendments that simply write the ban into the Constitution itself. That is a truly radical, not at all conservative, approach to drafting amendments. The Constitution is the place where the powers of government are defined or limited, not the place where individual laws are inscribed.

- rhubarbs

August 3, 2010 at 11:54am

Also on gay marriage: the truly conservative approach is not an amendment banning gay marriage, but an amendment granting Congress the power to do so. For example, here's the proposed federal marriage amendment: "Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution or the constitution of any State, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups." And here's how someone with even the tiniest bit of respect for the Constitution would draft it: "The Congress shall have the power to establish a uniform rule of marriage, and uniform laws on the validity of public acts, records, and judicial proceedings related to marriage, and any privileges and immunities resulting therefrom."

- rhubarbs

August 3, 2010 at 11:58am

While I'm doing a data dump - sorry! - here's an approach to the flag-burning amendment I could grudgingly tolerate: "Section 1. The legislatures of the several states shall have the power to prohibit the physical desecration of the flag of the United States. The physical desecration of the flag of the United States shall not be a felony. The crime of desecration shall consist only in the physical destruction or defacement of the flag of the United States, or the display of a damaged or defaced flag of the United States, without regard to the intent or purpose of the destruction, defacement, or display. "Section 2. Congress shall have the power to prohibit the display, by the federal government or the governments of the several states, of flags, emblems, symbols, or insignia associated with current or past armed insurrection against the United States. "Section 3. Congress shall have the power to prohibit the display of flags, emblems, symbols, or insignia associated with foreign states currently or formerly at war with the United States." States can ban flag-burning, or not, but only as a misdemeanor, and Congress can ban state displays of the Confederate flag. A fair compromise in my book, but the point is that the ban is not written into the Constitution; rather, the power to pass a ban into law is established.

- rhubarbs

August 3, 2010 at 12:03pm

What's the list of Constitutional amendments proposed by mainstream Democrats? Equal Rights Amendment (an amendment which once upon a time Republicans supported) But other constitutional amendments liberals would support: 1. Voting Rights Amendment -- a constitutional amendment granting every American citizen the right to vote regardless of incarceration status 2. Natural Born Citizen Amendment -- getting rid of the natural born citizenship requirement to be President 3. DC Voting Rights Amendment 4. Direct Election of President Amendment 5. Repeal of the 22nd Amendment

- jimbomoron

August 3, 2010 at 12:04pm

Rhubs - your proposed amendment would not necessarily work. (Take it from a Canucker :).) In Canada, Parliament has the full authority, under the Constitution of Canada, to define "marriage" for the country (the "rites" are regulated by the provinces - long story, but our constitution is full of these compromises). The exercise of that authority to define, however, is subject to other constitutional rules, such as the Canadian Charter of Rights and Freedoms. Because the Constitution is presumed to work seamlessly, the grant of an authority in one place ("the definition of marriage") may not underline the application of limitations on the exercise of legislative authority in another place ("no discrimination"). And so, "marriage" may not be defined by Parliament in such a way as to offend the prescriptions of the Charter, specifically in relation to the equal protection of laws, etc. I suspect similar interpretative rules apply in respect of the American Constitution. For your amendment to really keep the courts out of the gay marriage issue, it would have to say something along the lines of: "Notwithstanding any other provision of the Constitution, the Congress shall have the sole and unqualified power to establish a uniform rule of marriage, and uniform laws on the validity of public acts, records, and judicial proceedings related to marriage, and any privileges and immunities resulting therefrom. For greater certainty, any such definition may not be reviewed, modified or annulled in any court of law." Of course, this means that Congress may enact laws in respect of miscegenetaion, and it would not be reviewable. That is to say, if the point of a gay marriage amendment is to screw the gays, and only the gays, then the only way to do is what the Republicans are doing.

- icarusr

August 3, 2010 at 12:16pm

icarusr, the American court system treats competing constitutional standards very differently than does modern Canadian jurisprudence. But even so, the "nothing in this Constitution shall be construed to require" language should probably be transplanted from the FMA to my proposal. However, the bit about "or the Constitution of any state, nor state or federal law," is un-conservative, overreaching radicalism. That's for the residents of the several states to work out for themselves, not for Big Gummit in Washington to dictate.

- rhubarbs

August 3, 2010 at 12:25pm

Go ahead and laugh at the "Parental rights" amendment Chait. Soon enough jackbooted thugs will break down your door and insist that little Jessica is overstimulated and needs a nap. Seriously, of all the proposed amendments, that is the one I can't figure out. Other than prompting stupid lawsuits from abusive parents, I don't know what it would accomplish.

- WillPastor

August 3, 2010 at 12:59pm

Hey, I mean these people really respect the Founders and their "original intent." I mean they so love the Constitution they are over-loaded with ideas on how to improve it.

- MikeB.

August 3, 2010 at 2:04pm

Will, you haven't been around fundamentalists much lately. These people have a bee in their collective bonnet about corporal punishment of children as being seen as child abuse and the state intervening to take away their children. Just another bit of Christianist wingnuttery.

- zardoz67

August 3, 2010 at 2:09pm

I assume the majority of the Dem party would support an amendment repealing the 2nd amendment, though no one talks about it anymore.

- Simon Greenwood

August 3, 2010 at 3:29pm

the parental rights amendment is literally intended to protect abusive parents who homeschool their chidlren from any consequences of their treatment of their children. (no, most parents who homeschool their children aren't abusive, but the amendment was intended to protect those who are accused of abuse from having to submit to even the most rudimentary investigation (like, you know, establishing that their children are still alive). I attended a child welfare conference in the early aughts where a lawyer (invited by a Bush appointee) made a presentation in favor of such an amendment and stated that the purpose was to protect parents who homeschooled their chidlren from ever being investigated by child protective services, regardless of the nature of the accusations. It's what zardoz said, except slightly worse.

- miceelf

August 3, 2010 at 3:58pm

Big difference between "proposed" and "would support."

- cspencef

August 3, 2010 at 9:47pm