Changing the Constitution

George W. Bush’s decision to throw his support behind a U.S. constitutional amendment banning gay marriage raises new political considerations for candidates in this election year.

Democrats worry that, once again, they will lose control of the campaign dialogue and end up arguing polarizing social issues instead of national security and the economy. In the 1988 presidential campaign, the weaknesses of George Bush the Elder on Iran-Contra and other issues were never exploited by Democratic candidate Michael Dukakis, who was on the defensive over the pledge of allegiance and flag burning. For much of the campaign in 1972, President Richard Nixon’s handling of a troubled economy and the war in Vietnam were submerged in discussions of Democratic candidate George McGovern’s alleged positions on “acid, abortion and amnesty.”

At a local level, state legislators may find themselves fielding questions about whether they would vote to ratify a gay marriage amendment—a prospect they dread.

Even some Republicans, opposed to gay marriage but instinctively opposed to federalizing local issues, aren’t wild about the idea.

Republican Senator Mike McGinness of Fallon, for example, says marriage is the province of local government.

“All laws should be as local as possible, so if we can keep it that way, so much the better,” he says.

Under the provisions usually used for amending the U.S. Constitution, Congress must approve the amendment by a two-thirds vote in both houses and send it to the states. Three-fourths of the states, acting either in the legislatures or in state conventions, must approve the amendment. This state-level approval is usually done by the legislatures, but repeal of alcohol prohibition was done by state conventions. (The process for selecting delegates to the convention was similar to that used for the just-concluded Nevada caucuses.)

The constitutional amending process was designed by the 1787 constitutional convention to be difficult, so fundamental law could not be changed easily and a national debate would occur when it was changed.

In the 43rd federalist paper, James Madison wrote, “That useful alterations will be suggested by experience, could not but be foreseen. It was requisite, therefore, that a mode for introducing them should be provided. The mode preferred by the convention seems to be stamped with every mark of propriety. It guards equally against that extreme facility, which would render the Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults.”

Indeed, some critics of the new constitution argued that the amending process would be too difficult—"whether it is a good constitution or a bad constitution, it will remain forever unamended,” wrote someone identified only as “An Old Whig” in the Philadelphia Independent Gazetteer. That prediction has not come to pass, though, since the adoption of the Bill of Rights, amendments have occurred only about once every 13 years. The Constitution now has 27 amendments.

The framers’ laborious procedure, moreover, has been subjected to new challenges in an era of innovative and rapid technologies for political organizing, politicians who govern by playing groups off against each other and an overheated journalism.

In 1989, a national frenzy over flag burning caused numerous congressmembers to rush to support a constitutional amendment to ban the practice, a decision some of them later regretted. Missouri Republican Senator John Danforth later withdrew his support and apologized on the floor of the Senate for overreacting to public frenzy. He said it was fortunate that the amending process was not easy.

Nevada observers who recall the relatively rancorous public hearings and hardball politics that accompanied the ERA dislike the thought of a gay marriage amendment. McGinness, who sits on the Nevada Senate Judiciary Committee that would process Bush’s gay marriage amendment, says other states can deal with the issue as Nevada has, with statutory and constitutional bans on gay marriage.

And he’s terminally thrilled at the kind of acrimonious hearings that would be likely at the Nevada Legislature.

“I’m not real excited about that, if it comes to that," he said. "Nevada handled it on a local level; maybe we should let that play out in other states, too."