Nope
or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments,
It is still not clear how this would occur as we have never had an Article V convention but it is clear that it is distinct from the 2/3 vote of Congress method.
A Constitutional amendment eventually requires approval of three quarters of the states, not two thirds. It’s two thirds to propose an amendment but you still need 38 to make it the law.
That’s even worse! LOL
So an Article V convention goes as follows
2/3 of the states petition Congress to have a constitutional convention. It is not a general 2/3 for everything. If a state wants to have a convention over abortion then 2/3 of the states need to petition Congress specifically about an abortion amendment. 2/3 of the states could theoretically petition for an open convention where everything is on the table, even rewriting the Constitution completely.
Congress must call the convention. Nobody really knows what that would look like, least of all Congress. Does Congress run the convention or simply call it? Is it limited to what is in the petition? If the Session ends, do all petitions fall to the ground? Is Congress cheating by requiring 2/3 of the states to petition something specific? Maybe Article V means that when 2/3 of the states have various proposed amendments, a convention needs to be called to discuss them all. Speaking of that, how can the states force Congress to call the convention as it is required to do? Congress does NOT want an Article V convention.
Any amendments passed by the Convention (assuming majority vote but see above, there are no rules yet so they could try to make it 2/3 vote), they then go to the states in the same manner as if they were passed by 2/3 of Congress and become part of the Constitution when ratified by 3/4 of the states.
Indeed. And in today’s polarized climate I don’t think any amendment would pass: even one that says “We like ice cream.” I think that was a definite flaw in the Constitution. It shouldn’t be amended on a whim, but the hurdle has proven too much in recent times, even for things that would be very popular. And it is dangerous because instead of doing it right we use cheats like the commerce clause when there is an available way to expand federal power in a modern economy.
Those are all excellent questions which have no definitive answers because the procedure has never been used. Although I have no fears like many commentators of a runaway convention because again, you need 38 states to agree.
The counterpoint to that is that the first constitutional convention to tweak the Articles of Confederation similarly turned into a “runaway” sort of convention. I don’t think that would happen today because you have a strong judiciary out there. I don’t see what rule would allow one to see text that says “3/4ths of the states” and allowing the convention to say “no 10 is fine.”
ETA: I think there have been various calls at various times for different conventions which if you add them all up are greater than 2/3rds but no convention has been called. The questions are good. If Vermont in 1837 called for a convention banning witchcraft (making this up) is that still a valid call for a convention today? What if 12 states call for a convention on a balanced budget amendment, 12 call for one legalizing school prayer, and another 12 call for banning same sex marriage? Should a convention be called or not called because the requests are dissimilar?
I honestly don’t think what the Constitution specifically says here matters.
One can argue this way or that about specific of Constitutions, but they’re all just peices of paper. As the UK proves, a country can function with a Constitution that isn’t even written down. As many, many unstable countries have proven, you can come up with a dozen well written constitutions and have them all fail. The Dominican Republic has had dozens.
The problem the USA has isn’t the details of the Constitution, it’s that a huge chunk of the country, including a lot of politicians and judges, is increasingly uninterested in the country being a unified constitutional democracy. If you have that problem, it makes no difference at all what the Constitution says.
I am not saying this problem is unique to the USA; we’re seeing the beginnings of this in other places in the Western world.
Yeah, the high bar for amendment essentially forces you to at best rely on SCOTUS being the one who says that XYZ is what’s constitutionally allowed/required/barred, and then spend decades trying to flip the court to flip the result. But, at the same time, you don’t want to turn the federal constitution into one of those state constitutions that’s a virtual civil and administrative code down to street naming or that gets multiple and sometimes mutually competing amendments proposed every single November (hello California) or be like one of those countries where a sitting legislature can declare themselves a Convention and amend unilaterally.
Why not leave it up to the states? After all, that’s one of the primary reason we have states…
Because some things should be the right of ALL Americans regardless of where they live and regardless of how their neighbors feel about it. So, amendment. Or SCOTUS ruling if that’s what you can get.
Part of the issue with taking marriage equality to the national level was states decreeing that never mind what another state ruled, they would never recognize legal validity to your marriage, or in some states’ cases, even to anything that looked like it under a different name. To the point of politicians even proposing, yes, an amendment, to make THEIR position the constitutional mandate.
Exactly. And that is even in the Constitution with the Full Faith and Credit Clause but strangely that did not apply to marriages because reasons.
The idea seems to be that if we get to a point where the consensus is that large, figuring out the details will no longer be an issue. My guess is that this was seen at the time to be something that would be used against a small and powerful but very unpopular ruling elite. I’m thinking 80-90 % type unpopularity, and with those numbers coming from every side, not just a “I’m disappointed in my side because they look like they will lose the next election” but rather a “I don’t like what they’re doing, even if they are nominally on my side.”
I think that’s a feature, not a bug. Remember, many of the Founding Fathers ™ were against political parties; I’m pretty sure they are spinning in their graves over the current two-party system that seems to INSIST on direct polarization “if they’re for it, I’m against it!” By making the hurdle so high, they were trying to allow change, but only when it becomes blatantly obvious to the changed society, and avoid changes on a whim. Somehow, Prohibition snuck through. When it became blatantly obvious that a national prohibition on alcohol wasn’t working, the Constitution was amended to repeal. When it became blatantly obvious that if you’re being sent to war, you should be able to vote, the constitution was amended. We’re approaching the time when a majority of Americans (not a majority of politicians or a majority of political donors) see that it is blatantly obvious that any two consenting adults should be able to marry; I think this could become an actual amendment in the next 10-20 years if it comes under an actual attack (as of now, similar to the equal rights amendment, the attitude seems to be “it’s law, so why bother codifying it?”); I think any “Bodily Autonomy” amendment would be a much harder stretch.
Oh, and that attitude of “it’s law, so why bother codifying it?” is what got us in trouble with Roe to begin with. I think it would take the SCOTUS overturning Obergefell for the masses to be riled up enough to demand an amendment. This is why Congress should pass a law confirming Obergefell (and Loving and…) now while they can. That’s what Ginsburg wanted with Roe.
The problem is that there are things which have broad support. Say an amendment explicitly giving Congress the power to have a social security system or Medicare. I’ll bet those programs have 90%+ support, but if you proposed an amendment to that effect, there would be political pushback because…reasons.
I know that most posters do not trust Republicans, but I am supremely confident in saying that yes, abortion was always in the crosshairs and would have been for the next 100 years. I was opposed to SSM, but that particular issue is about as dead as can be. We might as well argue about 54-40 or fight. It is such a non-issue except in the minds of the left.
Unlike abortion, SSM is a generational issue. As the old fogies are dying off the new generation, even Republicans, just don’t have the same prejudices about homosexuality. It will never again be an issue.
Until it is. Would not surprise me in the least if there was something winding its way through the court system that eventually will hit the Supreme Court. Thomas has already said we should reexamine Obergefell (many read that as “overturn”); it would not surprise me in the least if it were overturned. When (if?) that happens, we may see enough of a popular surge for creation of an amendment; we certainly will see legislation at that time; that may actually be a time when we’ll see bipartisan support for the legislation; it won’t pass by a3/4 majority; I doubt it will hit 2/3 - there’s still enough politicians out there who are beholding to the evangelical special interest. I’m positive 2/3 of the American public has no problem with same sex marriage, but there’s no way it would get that many votes in Congress.
I think constitutional amendments work better when they ascribe to broad timeless principles and so they can adapt to changing circumstances societal norms and new understandings of how the world works (orginalists can suck it!). So rather than saying gays can marry , and abortion is OK, I would have two amendments.
The first would be an expanded equal rights amendment that would include sexual orientation and gender identity as well as sex.
The second would be a list of fundemental rights, bodily autonomy, marriage, etc. that are explicitly protected under the 14 amendment, plus a double bolded reiteration of the 10th amendment saying that this is not a complete list dammit, future generations may come up with rights we forgot to include.
I also concur that under the current climate there is no way in hell that an amendment of any sort could be passed. If the Democrats proposed a “ice cream tastes good” amendment, the Republicans would reflexively oppose it, just so they could point to it as yet another failed Democratic proposal.
Or state legislatures. A giant flaw in the current requirements for proposing a constitutional amendment, and for passing one, is that it counts states, not population. The 13 least populous states could prevent a constitutional amendment from passing, even if they represent only a tiny fraction of the population.
I suspect it was written the way it is with abolition of slavery specifically in mind. If we ever do have a constitutional convention, some serious thought should go into improving the system for amending the constitution. Nothing too easy, but something more achievable.
With regards to anti-miscegenation laws, I don’t believe the question was ever raised in federal court before becoming moot.
Just like how, to my knowledge, suffragettes never formally argued that the equal protection clause prohibits discrimination on the basis of gender. (They did argue, unsuccessfully, that suffrage is a privilege of U.S. citizenship. Strictly speaking it is not.)
I will add, however, my personal opinion that the Full Faith and Credit Clause is severely handicapped without federal law to give it effect. There are in fact two sentences under consideration,
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
States are not, in my personal opinion, at liberty to question the validity of sister State laws, records, and judicial proceedings (due to the word “shall”). Congress, however, may prescribe the “Effect” of proving such sister State laws, records, or judicial proceedings. Or Congress may decline to do so, in which case I say the State has discretion on whether to grant any special privileges (i.e. tax privileges, estate considerations, license to have sexual relations) to a couple that proves they were married in another State.
~Max
ETA: { I support the effort to explicitly protect rights in general. Though I’m only slightly in favor of protecting these particular rights, I think you would prefer discussion of effective proposals and language rather than an omnibus debate on the issues. }
First things first, you want to specify that this provision applies to the States (and probably the United States, too). Also a minor change, we do not say rights for people to X, we say rights of people to X.
The right of
fortwo persons legally allowed to enter into contracts to marry shall not be denied or abridged by the United States or any State.
I agree with ctnguy that the language can be interpreted so as to prohibit States from outlawing incestual and polygamous marriages. I would so interpret it. It also appears to prohibit States from outlawing adultery.
As you seem hesitant to make a carveout for incest, I’ll pass over that. For polygamy and adultery, we may qualify the subject as “two unmarried persons”.
The right of two unmarried persons legally allowed to enter into contracts to marry shall not be denied or abridged by the United States or any State.
I agree with UltraVires. There is unnecessary ambiguity in the object of the phrase “to marry”. I would resolve the ambiguity by interpreting “to marry” as modifying “the right” rather than “contracts”, because to do otherwise would render the entire provision nonoperative (Constitutional provisions are entitled to the assumption that they do something).
Nevertheless we can avoid the ambiguity by shifting the sentence structure around.
Neither the United States nor any State shall deny or abridge
Tthe right of two unmarried persons to marry, provided they are legally allowed to enter into contractsto marry shall not be denied or abridged by the United States or any State.
This however does not address UltraVires’s second criticism, which is that the words “legally allowed to enter into contracts” encompass minors. A contract entered into with a minor is not void on its face, although it is not enforceable. Presumably you do not want to prohibit the States from outlawing child marriages.
There are a couple solutions to this problem. First you could prohibit child marriages at a federal level by specifying an age, for example “unmarried persons who are eighteen years of age or older.” Child marriage is controversial and nearly all (40+) States allow minors to marry under certain circumstances, so for the purposes of this post, I won’t include that. You could also replace “legally allowed” with the legal term “competent”, leaving the problem of child marriage in status quo.
Neither the United States nor any State shall deny or abridge the right of two unmarried persons to marry, provided they are competent
legally allowedto enter into contracts.
This isn’t perfect language. For one, competency is left to the Supreme Court to define. Although I trust the Court to leave it to States to define “competency”, you may want to do so explicitly. Second, and this goes to the core of your newfound advocacy for explicit rights, the right to enter into contracts isn’t enumerated in the Constitution. The closest thing is the Fourteenth Amendment’s guarantee of due process before States may restrict “liberty”, construed widely so as to encompass the “liberty to contract”. Yet the Courts have ruled that States may use their police powers to infringe on individuals’ liberty to contract, West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937). That ruling is the basis for State minimum wage laws. The Court reasoned that the State’s interest in each individual’s health, safety, and welfare justified the minimum wage laws just as well as safety regulations. But they also reasoned that the State was justified in restricting women from working long hours because ‘women become objects of public interest and care in order to preserve the strength and vigor of the race’. Id. at 394.
Surely one can argue to restrict the liberty of contract when a same-sex couple seeks a marriage license. Today he would be a sophist; in a world where this amendment is not only prudent but necessary, I would want to protect the right to enter into contracts explicitly.
~Max
There are a number in clinical trials as well as non-hormonal methods like RISUG which blocks sperm transport in the vas deferens, essentially a reversible vasectomy.