Friday, October 12, 2012

We Should Have a [fill in the blank] Amendment

 Everyone has his or her concerns, very real and strong concerns.  Some so strong, in fact, that one of the most popular political topics of discussion is amending the Constitution to address those concerns.  How many times have you heard people say we should amend the Constitution to ban flag burning, gay marriage, or the Electoral College, or mandate a balanced budget or any number of other topics of debate?
 Hearken back to my previous post about the longevity and durability of our Constitution.  I make the argument that the very fact that the Constitution is not only long-lived but little-changed is proof of the genius of its creators.  I still maintain that, though I've recently stumbled across a counter-argument that makes a good case for needing to make amending easier, not harder.  Timothy Lynch of the Cato Institute wrote in the Tennessee Law Review that the difficulty of amending the Constitution makes people shy away from addressing problems in our society and government through that means, but rather forces them into using judicial or legislative means, which may in fact run counter to the principles of the Constitution.  He makes a good point that perhaps there are times when the Constitution should be the place for a certain remedy, rather than the courts or legislatures, but the process of doing so is too cumbersome.  See his full argument here:  

I still maintain that the difficulty of amendment is a good thing.  Changing the Constitution is a very big deal.  It's the basis of our government, the very foundation.  A too-easily amended document makes it too easy to change the basic tenets of our government, while setting the bar too high (Lynch's argument) makes people use other - perhaps unintended by the Founders - means to take care of business.  James Madison says in Federalist 43, that Article V of the Constitution strikes the right balance: “It guards equally against that extreme facility, which would render the  Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults.”  As usual, I tend to side with Madison, but Lynch makes a good case.

I recently had an interesting discussion with a co-worker about the Constitution.  She insisted that our beloved document had basically no relevance to today's society and provided no protection or assurance of rights to her or anyone else.  What really shocked me about this was she is a naturalized citizen.  Typically, naturalized U.S. citizens are the most vocal and strong supporters of the Constitution, considering what kinds of governments most left behind to come to the USA.  Such citizens also tend to know the Constitution better than most, since they had to study it to earn citizenship.  I asked her, then, in her opinion, how should we amend the Constitution to make it better?  She had no answer, other than to go on a rant about medical marijuana, organic farming, the evils of Monsanto, and freeing Palestine - none of which had anything to do with the Constitution, of course.  A small example, of course, but I think one that illustrates my point that we should not amend the Constitution for every little grievance or problem, either real or imagined, we encounter.

The food for thought here, then is this: Is whatever problem we are debating truly a Constitutional issue?  In other words, do we need to change the very foundation of our government to address it, or is it better addressed by legislation, and if so, should it be at the federal or the state level?  Given the concerns of my co-worker above, for example - is organic farming (or reining in big, bad Monsanto) really an issue for the Constitution, or is it more a regulatory concern?  Likewise, medical marijuana.  And are those more state concerns than federal?  While the issue of Palestine is a concern of the federal government, is it something that needs to be addressed in the Constitution?  More broadly, how about the federal budget?  We all are concerned about that, no doubt, but how would an amendment mandating a balanced budget work?  What would be the penalty for failing to do so?  While I like the idea in theory, how do we put it into practice?

There are plenty of areas of concern I have, just like everyone else.  For example, after 21 years in the military, I obviously have a great love and respect for the flag.  It irritates, even enrages, me to see someone defacing, defiling or burning the flag.  Yet, I don't believe an amendment prohibiting that is warranted.  It would, in my opinion, be in direct conflict with the First Amendment.  As much as I hate seeing it, the irony is that 21 years of my life were willingly spent defending someone's right to do it.  As Voltaire is reputed to have said (there is some debate whether or not he is the originator of this quote), "I may disagree with what you have to say, but I shall defend, to the death, your right to say it."  That said, if there were some statute offering amnesty for anyone who beats up a flag-burner, well, I'm on board with that...

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