James Kerian: Conservatives Expect Too Much Of Constitutional Amendments

Nearly three years ago Mark Henrie wrote a facinating article on “What Conservatives Want.” His thesis was that:

“They want to stop the historical forces that threaten to efface things held dear. More deeply, however, what conservatives really want is to forge, or discover, or reach a new historical dispensation in which the historical process would not be automatically geared to advancing the values of the Left.”

Progressives seem quite content to be eternally striving to remake/replace laws, society and human nature according to their desires but conservatives have a burning desire to find a way to go, fight, win… and then to go home again and not have to fight anymore in defense of the things they love.

This has led to immense fondness in the conservative movement for the idea of governing through constitutional amendments.  The pro life movement has sought equal protection under the law for unborn children through Human Life Amendments at both the state and federal level.  Thirty-one states have passed constitutional amendments limiting the issuance of state marriage licenses to monogamous heterosexual couples.  A rapidly growing movement among fiscal conservatives is calling for an Article V convention to amend the US Constitution.

[mks_pullquote align=”right” width=”300″ size=”24″ bg_color=”#000000″ txt_color=”#ffffff”]Conservatives have a burning desire to find a way to go, fight, win… and then to go home again and not have to fight anymore in defense of the things they love.[/mks_pullquote]

I am not opposed (as readers of this column know) to using constitutional amendments to advance the conservative cause.  It is important, however, for conservatives to be realistic about what can and cannot be accomplished by these means.  A constitutional amendment can stir up a grassroots movement.  It can force an issue from the sidelines to the center of our political discourse.  If adopted it can even be useful in protecting the policy it prescribes so long as the judges, legislators, bureaucrats and executives involved in the policy are at least evenly divided on the subject.

A constitutional amendment will not change the dynamic of what movements have money behind them.  Even as it brings a specific issue to the center of our political discourse it will not change the ugliness, dishonesty or deception that marks so much of that discourse.  Even if adopted it will not impact policy if the judges, legislators, bureaucrats and executives are, on balance, opposed to the policy that the amendment prescribes.

Consider gun control in America.  It is not the 2nd Amendment that maintains our freedom to bear arms in this country, it is the people who care about the issue and work hard every day to persuade a strong majority of Americans that this is a freedom worth keeping.  These activists, by persuading a majority both to believe in the right to bear arms and to care enough about the issue to vote accordingly, have made gun control a losing issue in both Congress and at the Supreme Court.  There are, however, dozens of Senators, hundreds of Congressmen, one President and four Justices of the Supreme Court who have made quite clear how ready and willing they are to completely ignore the 2nd Amendment.  If public opinion (or just public apathy) gives them the opportunity then that is exactly what they will do.

This can be seen in the way governors and state’s attorneys have refused to defend marriage amendments.  The amendment process was once hailed as a safeguard against judicial activism but even state and local judges are now completely disregarding enacted constitutional amendments when the public is divided on the issue.  If those in authority have so easily ignored the constitution on this issue there is no reason to think they will not be able to do the same thing on any other issue where there is no overwhelming public sentiment to keep them in check.