Flashback: You Say You’ll Change the Constitution

In anticipation of the shutdown of Apple’s MobileMe service, I am re-posting some of my old blog entries before they become harder to retrieve.

This entry was originally posted on April 2, 2004.

As many people probably recognize, the title of this entry comes straight from the Beatles’ song “Revolution.” The full line continues by saying “… well you know, we all want to change your head.”

Let me state up front and on the record that I am not in favor of amending the United States Constitution for any reason right now. Current political dialogue has five unique proposals that, should they pass the appropriate congressional and state hurdles, could become constitutional amendments. If any of these amendments should come to pass, it should only be after very serious debate with regard (1) to the merits of the item, and (2) whether or not it can be accomplished via other means.

With that being said, there are two ideas that clearly should never come to pass as amendments to the constitution, two others that at least rise to the level of debate, and a fifth that is worthy of debate, but the debate should clearly begin with someone asking, “Is this something we can accomplish via other legislative means?”

Let’s start with the one that may not be a bad idea, but also should be researched as to how else it can be accomplished. Term limits in the Senate and House of Representatives. The precedent is clearly there in the form of the twenty second amendment, which imposes a two term limit on the president.

I find it curious that this is arguably one of the most partisan amendments to the constitution. After Franklin Delano Roosevelt broke tradition by being the first president to run for a third term in office and won, the members of the opposite party moved forward and passed this amendment. Ironic, considering that the opposite party, the Republicans, were in the White House for all but eight years between 1861 with the election of Abraham Lincoln, and the 1912 election of Woodrow Wilson. Grover Cleveland was the only Democrat president in that entire time frame.

Still, the viability of this amendment becomes secondary to the fact that it is the law of the land and I see no inherent reason to overturn it. (At least for the foreseeable future.) So what’s wrong with extending a similar rule to Congress and the Senate? Five terms for congress and two for the senate. (Or something roughly comparable…) Can we accomplish this without a constitutional amendment? Possibly. Worth looking into? I’ve got no problem with that…

Now for the amendments that clearly do rise to the level of debate that means we should at least consider a constitutional amendment.

First is the elimination of the electoral college. In 1913, the seventeenth amendment changed the way Senators are chosen. Prior to that time, the governor of a given state nominated the Senators. That pretty much guaranteed an exceptionally partisan representation in the Senate and led to some very righteous indignation among the people. Now there are enough states either with a Democratic governor and Republican Senators (such as Pennsylvania) or a Republican governor and Democratic Senators (such as California) to know that the people might put a different weight on issues of national legislation than they do on local concerns.

It might be a little bit of a jump from this argument to say that there should be direct election of the president the same way as everyone else is directly elected, but it’s worth debating. A lot of people are rightly disenfranchised in presidential elections for no other reason than the fact that they voted for one candidate, who did not win a majority of votes in their home state, only to see all of that state’s electoral votes go to the other candidate. I would hate to live in Florida, where George W. Bush beat Al Gore in 2000 by less than 1% of the total votes (no matter how you look at it). Was it necessarily right that Bush should have gotten all of that state’s electoral votes? I don’t know the answer to that question.

The downside of this kind of amendment is actually pretty straightforward: rather than seeing candidates focussing on certain states, they will focus too heavily on the large cities. Will it reduce voters’ disenfranchisement? Maybe, maybe not. Let’s open up the debate and see what happens.

California Governor Arnold Schwarzenegger recently said he is in favor of this next one. Although his statement was clearly self-serving, since it would apply directly to him, I’m actually open to this debate. Article II of the Constitution states that the President must have been born in the United States. With this in mind, I teasingly tell some people that this rule means that our first seven presidents (Washington, Adams, Jefferson, Madison, Monroe, Adams, and Jackson) don’t really count as having been presidents by a strict interpretation of the constitution. The United States declared its independence from England on July 4, 1776. Anyone born prior to that date was therefore not born in the United States. Our first president born since then was Martin Van Buren, otherwise known as our eighth president.

All humor aside, though, what is wrong with a foreign-born but naturalized US citizen becoming president? Since I was born in the United States is there something that makes me inherently better or more worthy of becoming president than someone who was born in some other country but made the active choice to give up his or her homeland in favor of becoming an “American”? I’ll even take that one step further.

The naturalization process for foreigners who wish to become US citizens is a long, tedious, drawn-out task that climaxes with the successful completion of an exam on US history and civics and culminates with the new citizen taking an oath. US-born citizens are under no requirement to pass such an exam or take such an oath. I would love to know how many people you meet on the street could pass that exam….

I don’t think enough debate has taken place about either of these constitutional amendments for me to know whether or not I support them, but I definitely do support the idea of debating their merits.

There are two others that are absolutely without merit and clearly have no place in modern debate, especially when that debate governs changing the constitution. I think it’s ironic that I have yet to hear what I consider to be a valid argument in favor of either of these amendments.

The first is a constitutional amendment that would ban flag desecration. In a 1989 decision, Texas v. Johnson, the Supreme Court pointed out that the only form of flag desecration (or flag burning) that cannot be prosecuted under some other existing laws, is when I burn my own flag, on my own property, and without causing any danger to anyone else. In other words, the burning of a flag that doesn’t cause a spectacle and no one would pay any attention to it.

Don’t make any mistake: if you go out and burn a flag, you deserve the indignation, ire, and contempt (if not outright hatred) that comes from having an unpopular opinion. But if you have something to say or do that I don’t like and/or am offended by, I have no reason to expect the constitution to silence you. In fact, I consider it one of the strengths of this country that the constitution allows you to speak.

The last one is the one that has had the most written and spoken about in recent months: an amendment that defines marriage as between one man and one woman. The arguments in favor of this amendment have distinctly religious undertones, so let me make this point very clear: religion has a corrupting influence on the political process, and politics have a corrupting influence on religious doctrine, so it is best that they are kept separate. I do not want to hear any arguments that homosexuality is a sin, a crime against your god, or any such arguments. The reality is that those arguments are just fronts for the very Calvinistic fear that someone, somewhere, might be having a good time. Worse yet, they’re having a good time and doing so for the express purpose of enjoying themselves.

Some people say that homosexuality is not natural. Perhaps. But if I were to strip you naked and blindfold you, then parade ten people in (with a random number of men and women) and ask them all to hide their genders while they please you (i.e., trim nails, trim hair, shave facial hair, use non-gender-specific body parts), I doubt you’d be able to tell me which ones were men and which ones were women. If the feeling is the same regardless of the gender of your pleasurer, how can it not be natural?

Pennsylvania Senator Rick Santorum — a man for whom I have little respect — made the argument that the legitimization of homosexual behavior would lead to “polygamy, bigamy, and incest.” As long as everyone involved knows what’s going on, what they’re getting into when they enter into it, and the long-term emotional and physical requirements of it, I see nothing wrong with polygamy and bigamy. (As long as it’s even-handed. A man can have two or more wives, a woman can have two or more husbands. If everyone’s cool with that, fine.) I will draw the line at incest, but only for genetic reasons. If they don’t want children, I’m fine with incest, too.

The argument in favor of this amendment that I personally love is that it cheapens heterosexual marriage. I can honestly say that I don’t understand how or why this would be. I have far too many gay and lesbian friends; if they were allowed to marry and share in the magic that I have with my wife, that would only serve to strengthen my own marriage, not weaken it.

You want to strengthen marriage? Let the gay community marry. And let everyone get bored with the fight. I sure am starting to.

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