Sunday, August 10, 2014

Is it "Unconstitutional" NOT to Pass a Constitutional Amendment? Of course not!

It is sad that so many Americans (mostly inadequately educated, i.e. never took a high school course in Government) have so little grasp of our Constitution that they're unable to reason clearly and thus become hostage to ideology and hysteria.  One of the uninformed tropes currently circulating in various parts of the Net is that it is "unconstitutional not to pass a particular Constitutional Amendment". 

If we are to take this literally it means that those proclaiming it think that just because the word "Constitutional" appears ("Constitutional Amendment".) then it HAS to be passed. Of course this is total nonsense!  If one understands the process for proposal and then ratification, it becomes clear that the arduous and difficult nature of each serves as insurance against stupid or unwise amendment proposals, i.e. such as against burning the flag to express symbolic dissent, or against government-based health care providing contraceptives.

The details of the process of passing a Constitutional Amendment are given in the Federal Register archives, and I reproduce them here in summary form:

"The authority to amend the Constitution of the United States is derived from Article V of the Constitution. After Congress proposes an amendment, the Archivist of the United States, who heads the National Archives and Records Administration (NARA), is charged with responsibility for administering the ratification process under the provisions of 1 U.S.C. 106b. The Archivist has delegated many of the ministerial duties associated with this function to the Director of the Federal Register. Neither Article V of the Constitution nor section 106b describe the ratification process in detail. The Archivist and the Director of the Federal Register follow procedures and customs established by the Secretary of State, who performed these duties until 1950, and the Administrator of General Services, who served in this capacity until NARA assumed responsibility as an independent agency in 1985.

The Constitution provides that an amendment may be proposed either by the Congress with a two-thirds majority vote in both the House of Representatives and the Senate or by a constitutional convention called for by two-thirds of the State legislatures. None of the 27 amendments to the Constitution have been proposed by constitutional convention. The Congress proposes an amendment in the form of a joint resolution. Since the President does not have a constitutional role in the amendment process, the joint resolution does not go to the White House for signature or approval.

The original document is forwarded directly to NARA's Office of the Federal Register (OFR) for processing and publication. The OFR adds legislative history notes to the joint resolution and publishes it in slip law format. The OFR also assembles an information package for the States which includes formal "red-line" copies of the joint resolution, copies of the joint resolution in slip law format, and the statutory procedure for ratification under 1 U.S.C. 106b.

The Archivist submits the proposed amendment to the States for their consideration by sending a letter of notification to each Governor along with the informational material prepared by the OFR. The Governors then formally submit the amendment to their State legislatures.....

A proposed amendment becomes part of the Constitution as soon as it is ratified by three-fourths of the States (38 of 50 States).  "

 Note first that "the authority to amend" the Constitution (by Article V) doesn't mean that there is no authority to oppose it. Indeed, this is why there are two key parts to passage: 1) proposal and 2) ratification. Both provide steep impediments to passing foolish or frivolous Constitutional Amendments, e.g. such as outlawing contraception or abortion, or dictating that all atheists must register their name, addresses and get special IDs before they can vote.  Part (1) is a monumental barrier because two-thirds of BOTH Houses of congress are needed. Thus, any person with a degree of common sense can see (given how our congress is divided) that any given attempt at proposal is more likely to FAIL than succeed  - especially if it's a controversial issue like flag burning or abortion.

But getting the proposal through is only the beginning. Even if by some fortuitous circumstance two thirds of congress agrees and the proposal is completed and submitted to OFR for processing and publication - it now must be sent to the states where three-fourths must vote for ratification. The mere completion of the proposal or publication stage doesn't mean the Constitutional Amendment is a reality!

The fact that 38 of 50 states need to agree to ratify the amendment is probably the biggest hurdle of them all. Given how our electoral maps (even with gerrymandering) show clear 'blue' and 'red' states it means that any "red state" - proposed Constitutional amendment - say like banning abortion in the nation- has about as much chance of ratification in blue states as I have becoming a tourist to Mars before I croak. Thus, if there are 22 'blue states' and none of them ratify a given proposed Constitutional amendment it will fall ten short of the needed 38.

Thus, we see clearly that there is NO guarantee that just because something is proposed as a Constitutional Amendment, it deserves to be automatically ratified and become part of the Constitution.

This is not by happenstance, but by design. Watch the HBO series 'John Adams' again and the segments of the parts to do with the Constitutional Convention. The Founders were quite aware of how any obscene power monger might seek to impose his will via Constitutional amendments, so they deliberately made passage difficult, just as they rendered it difficult for one branch of government to supersede others in influence (via the separation of powers).

We should applaud the fact it is difficult to get Constitutional amendments ratified, not bellyache about a (probable) negative outcome being somehow "unconstitutional" - which only reveals a deep-seated ignorance of the amendment process.

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