s-gerber at onu.edu
Mon Mar 15 15:39:47 PST 2004
I thought the attached might be of interest.
National Law Journal
March 8, 2004
HEADLINE: Don't abuse a rare process
By Scott D. Gerber
Special to The National Law Journal; Scott D. Gerber is an assistant
professor of law at Ohio Northern University Pettit College of Law. His
books include To Secure These Rights [NYU Press].
Powerful reasons have been offered for and against President George W.
Bush's recent call for an amendment to the U.S. Constitution "defining and
protecting marriage as a union of man and woman as husband and wife." For
example, it is difficult to deny the force of the president's argument
about the need to preserve marriage as a social institution. But it is
equally difficult to deny the power of the principal argument advanced by
those who oppose the president's position: The constitutional amendment he
seeks discriminates against homosexuals.
Separate and apart from the profound substantive questions sparked by the
president's proposal is an equally significant procedural question that has
been largely overlooked; namely, whether now is the time to raise these
substantive questions via the amendment process. I don't think it is.
The president emphasized in his statement calling for a constitutional
amendment outlawing same-sex marriage that he was concerned about
"activist" judges and "defiant" local officials. Of course he was referring
to the Supreme Judicial Court of Massachusetts, which recently held that
the Massachusetts Constitution requires that same-sex couples be allowed to
marry, and to the mayor of San Francisco, who mandated shortly after the
Massachusetts decision that San Francisco city officials start issuing
marriage licenses to such couples.
California state law explicitly forbids the mayor of San Francisco from
doing what he did, and the state's governor, Arnold Schwarzenegger, has
instructed the state's attorney general to sue the mayor to force him to
stop. Federal intervention-especially by constitutional amendment-therefore
The more interesting case is Massachusetts. Although government officials
there were, and apparently still are, debating whether to amend their
state's constitution to reverse the Massachusetts high court decision at
issue, such an amendment seems unlikely to pass [or at least become law]
before the court order takes effect. History makes plain that there is
precedent for Bush's call for a federal constitutional amendment to reverse
judicial rulings. Six of the 27 amendments to the U.S. Constitution were
responses to judicial decisions that the nation thought were in error.
The 11th Amendment reversed Chisholm v. Georgia , which decided that
a state could be sued in federal court by a person from another state. The
13th, 14th, and 15th amendments reversed Dred Scott v. Sandford , a
decision that relegated blacks to the status of property. The 16th
Amendment overruled Pollack v. Farmers' Loan and Trust Co. , which
struck down a federal income tax. Finally, the 26th Amendment was ratified
in 1971 to reverse Oregon v. Mitchell , a decision that voided a
congressional attempt to lower the minimum voting age in state and local
elections to 18.
Significantly, though, the court decisions overturned by these amendments
had been rendered by the U.S. Supreme Court. The nation's highest court has
not yet ruled on the same-sex marriage question. In fact, the justices
reserved the question for future disposition in last term's landmark gay
rights decision, Lawrence v. Texas. Bush's attempt to pre-empt the judicial
process is therefore historically unprecedented and procedurally premature.
It is also constitutionally unwise.
Judicial process comes first
The amendment process is perhaps the most important part of a constitution,
because a formal mechanism for change is essential to the very survival of
the polity. The amendment process is, in short, a peaceful substitute for
revolution. Abraham Lincoln, who understood the purpose of the Constitution
better than any statesman since it was written, demonstrated an
appreciation of this fact in his first inaugural address. "This country,
with its institutions, belongs to the people who inhabit it," Lincoln
remarked. "Whenever they shall grow weary of the existing Government, they
can exercise their constitutional right of amending it or their
revolutionary right to dismember or overthrow it."
The Framers knew how politically and socially disruptive it can be to amend
the Constitution. That's why they made the process so difficult. James
Madison, the principal architect of the Constitution, maintained that the
Constitution would be deprived "of that veneration" so essential to
political and social stability if the amendment process were too easily-or
What's troubling about Bush's call for an amendment to the U.S.
Constitution outlawing same-sex marriage is, then, that it ignores the
threat to political and social stability that might result if the nation
bypasses the judicial process for the amendment process. The Supreme Court
frequently makes decisions with which people disagree. However, for the
good of the nation, the president should allow the question of whether
same-sex couples have a constitutional right to marry to work its way to
the nation's highest court. After all, deciding difficult questions of
personal rights is what the Supreme Court is charged by the Constitution
If the president disagrees with the decision the court ultimately reaches,
he can then invoke the amendment process to try to reverse it. To fail to
wait is to fail to understand the amendment process itself.
Ohio Northern University
Ada, OH 45810
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