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Breath Deep

Everyone's panties are in a wad about Bush's call for a constitutional amendment defining marriage as that between a man and a woman. Didn't everyone have to take a course in high school on U.S. History and Government?

Amending the Constitution is as American as apple pie. The argument that we've never amended the constitution to take rights away from people is a canard. Look up the 18th Amendment; better known as Prohibition. That amendment was repealed by the 21st Amendment proving that even amending the Constitution is not a permanent action.

Those who say that the president is imposing anything on the country with an announcement that he would support an amendment really need to stop and study the process. The president is mostly irrelevant to the process. Where usually he would sign a bill into law, in the case of an amendment he is not involved at all. The president is limited to cheerleading and using the proverbial "bully pulpit."

Eugene Volokh has an excellent overview of the amendment process and some of the lesser known provisions of the law.

A good debate on Bush's announcement is occurring in the comment section at Roger L. Simon's blog.

P.S. - Anyone remember the Equal Rights Amendment? That looked like a winner too at one point. It never passed.


Listed below are links to weblogs that reference Breath Deep:

» my so-called blog linked with Waiting to Exhale

» Judicious Asininity linked with Gitting in a Snit

» Jen Speaks linked with On Marriage and Amendments

Comments (8)

Good to remind everyone of ... (Below threshold)

Good to remind everyone of the Prohibition period, but I think that's a far cry from eliminating one group's right ot marry. (but then, I AM sort of biased on this, since I'd like to get married one of these days)

That said, you make excellent points about the actual process and procedural aspects of it all. Time will tell!

The issue here also include... (Below threshold)

The issue here also includes activist judges who override and usurp the will of the people expressed in referendums (CA) or by the legislature (MA).
Thus in a four/three divided opinion, these four lower court judges created a public policy for the 270 million other Americans. CA has passed a DOM act and the mayor is calling his marriages an act of civil disobedience because he has decided that civil unions don't go far enough.

Jane,I thank God f... (Below threshold)


I thank God for "activist" judges. If America had depended on popular opinion (will of the people) and voluntary progress for previous civil rights issues, we would still have a segregated society. Interracial marriages would be illegal.

People are saying, "Marriage has always been between a man and a woman." That is true. But, they are ignoring the fact that other criteria were law until the 1960s. Marriage used to be between a man and woman of the same race. Before that, it was between a man and woman of the same race and religion.

Here are some poll stats about interracial marriage views in America over the past two decades:

The Gallup Organization asked Americans in 1983, 1997 and 2002 if they approved or disapproved of marriage between blacks and whites:

Here's what respondents said in 1983:

Only 43 percent approved!

Racial breakdown:

Whites -- 38 percent

Blacks -- 71 percent

Here's what respondents said in 1997:

64 percent approved (big jump in 14 years)

Age and racial breakdown:

Whites -- 61 percent approved

Blacks -- 77 percent approved

13- to 17-year-olds -- 83 percent approved

Here's what respondents said in 2002:

65 percent approved (kind of disappointing isn't it?)

Age breakdown:

18- to 29-year-olds -- 86 percent approved

30- to 49-year-olds -- 75 percent approved

50- to 64-year-olds -- 53 percent approved

65 and older -- 30 percent approved

What this tells us is that if the courts had waited for popular opinion to change, interracial marriage would not have been possible until at least 1997! And since popular opinion has changed in part due to people getting used to the idea of interracial marriage, it would probably not be possible for people of different race to marry even today.

Thank God for our courts and our judges. If they only aped popular opinion, our world would be a much different place.

Fritz I find it completely ... (Below threshold)

Fritz I find it completely wild that you are attempting to make a plausible case against democracy.

You imply that the will of the people is second to the desires of the members of a ruling class.

I'm betting many of the people we just spent the last 2 years killing and taking out of power would agree.

I don't.

I would also hasten to add ... (Below threshold)

I would also hasten to add that while you claim to thank God for activist judges I would suggest you modify your statement to say you "Thank God for activist judges with which you agree."

One would think that if an activist judge decided to throw you in jail because he never liked the name Fritz you wold suddenly see the folly of your opinion.

Nothing like a little hypocrisy huh?

Fitz, interesting points an... (Below threshold)

Fitz, interesting points and quite civilly presented.
1) the inter-racial marriage ban may not be an apt comparision because other races were permitted to marry and it was clearly a denial of equal rights. In this case, the right of same gender marriages have not been established-its not like lesbians can marry but gay men cant. 2) a democracy is representative and while avenues are open the necessity of civil disobedience seems a stunt 3) if the premise of equal protection is assumed, do poligamists have the same rights? 4) is marriage a right or are rights rights 5) why do activist courts always lean left (rhetorical) when their function is not to make law or public policy? This is the function of the legislative branch. Just a few thoughts.

"I thank God for "activist"... (Below threshold)
Dave J:

"I thank God for "activist" judges. If America had depended on popular opinion (will of the people) and voluntary progress for previous civil rights issues, we would still have a segregated society. Interracial marriages would be illegal."

No, Loving v. Virginia was not an activist opinion, as neither was Brown. Both were consistent with the underlying intent behind the Equal Protection Clause of the Fourteenth Amendment. Judicial activism is about disregarding the intent of written law (constitutional or statutory) and, to paraphrase Hamilton in Federalist 78, substituting judicial will for judgment.

TO Jane's comment as well, I'd point out that the period between the 1870's and the "judicial revolution" of 1937 was an era of right-wing judicial activism, typified by the Slaughterhouse Cases, Plessy and Lochner, and it was just as wrong, and just as much a usurpation of authority, as is the left-wing judicial activism that's so prevalent today.

Thanks for bringing up the ... (Below threshold)

Thanks for bringing up the ERA. That was in tempo with the times, and it fell on its face--because people got smarter after Prohibition, and decided that, when in doubt, it's best not to amend the Constitution after all.

This marriage amendment nonsense wouldn't stand a chance. And I'm pretty sure Bush knows it.






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