Bush backs Gay Marraige Ban Amendment

[Imran Siddiqui]

The only thing giving power to amend is Art. 5? How else do you amend the Constitution? Nothing else in the document allows for Amendment. Since the grant of power is limited to what it is, there is no way to exceed the power granted.

Art. 5 provides a procedure to amend, but also limits on those amendments. So where is this power to amend beyond Art. 5 limitations come from? It cannot come from Art. 5 ...

But I'm saying you can remove those limits by using the same procedure. Why would an amendment which ONLY said that the last clause of Art. 5 is stricken be unconstitution?

Actually, Art. 5 does say you can't strike parts of Art. 5.

No it doesn't.

The bit that says that no amendment may deprive a state of equal sufferage in the senate can't be amended out since that would require amending it out.

Where does it say it can't be edited out? Where does it say that nothing in Art 5 can be amendment? You'd think they would have thought of that at the time.

[Boris Godunov]

Originally posted by Ned
But what was very interesting is that traditional marriages in France are in serious decline, and the out-of-wedlock percentage of births has risen to 46%, a percentage which is common throughout all countries that have legalized civil unions. The point of this is that the existence of the civil unions does appear to weaken the whole concept of marriage and seemingly give society's approval to the raising of children outside of traditional marriages.

Post Hoc fallacy. Marriage rates in France and the rest of Europe were in decline prior to the legalization of civil unions, as they were in every Western country. There was no increase in the rate of decline after adopting civil unions. This is just another bit of statistical slight-of-hand the religious right is trying to use, but it's so easy to see the logical fallacy it's painful.

[The Templar]

Originally posted by Imran Siddiqui
But I'm saying you can remove those limits by using the same procedure.

You're bootstrapping ...

No it doesn't.

Where does it say it can't be edited out? Where does it say that nothing in Art 5 can be amendment? You'd think they would have thought of that at the time.

The first part of Art.5 says:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress;

That's the procedure. Fair enough - the nation could amend the constitution using this proceedure to change this procedure. E.g. the people could allow the president acting alone to amend the constitution. Not a good idea, but doable.

The second part reads:

Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

This is not procedural - this is a flat out limit to the amendment power. Whatever procedure we might change to, these things cannot be put in the Constitution. Since Art. 5 is the only source of amendment power, these limitations are built into the power to amend.

Art. 5 states that no state may be deprived of equal sufferage without consent via amendment. Therefore, if you amend that prohibition out of Art. 5 you create a procedure whereby a state can be deprived of equal sufferage. But Art. 5 does not allow for you to amend the constitution to deprive a state of equal sufferage. Ergo, Art. 5 lacks the power to allow for an amendment that purports to do more than Art. 5 allows. Therefore, Art. 5 says that the prohibition cannot be removed - even if not in those words.

[Imran Siddiqui]

This is not procedural - this is a flat out limit to the amendment power. Whatever procedure we might change to, these things cannot be put in the Constitution. Since Art. 5 is the only source of amendment power, these limitations are built into the power to amend.

What says this can't be struck by an amendment? A amendment which simply says Article 5 will be the first part and first part alone. The limitations can be struck out.

But Art. 5 does not allow for you to amend the constitution to deprive a state of equal sufferage. Ergo, Art. 5 lacks the power to allow for an amendment that purports to do more than Art. 5 allows. Therefore, Art. 5 says that the prohibition cannot be removed

I don't see how Sentance 2 leads to Sentance 3. Seems like a large leap to me. Why can't the prohibition be removed? Because Art 5 says you can't make an amendment that does more than Art 5 allows? But striking a clause is NOT more than Art 5 allows. There is nothing that says that Art. 5 cannot be amended. If that was the case, it should have been stated.

That argument is similar to ones saying the Congress can't use federal money to entice the states to do certain actions Congress can't do under the Commerce Clause. The Supreme Court didn't buy that one.

[The Templar]

Originally posted by Imran Siddiqui

But Art. 5 does not allow for you to amend the constitution to deprive a state of equal sufferage. Ergo, Art. 5 lacks the power to allow for an amendment that purports to do more than Art. 5 allows. Therefore, Art. 5 says that the prohibition cannot be removed

I don't see how Sentance 2 leads to Sentance 3. Seems like a large leap to me. Why can't the prohibition be removed? Because Art 5 says you can't make an amendment that does more than Art 5 allows? But striking a clause is NOT more than Art 5 allows. There is nothing that says that Art. 5 cannot be amended. If that was the case, it should have been stated.

Quick answer: your reading fails to give any meaning to the actual text of Art. 5. It is phrased as a limitation, but if the limitation can be removed it is not really a limitation is it?

Longer Answer:

Trivial Case: one amendment purporting to deprive a state of equal sufferage.

- can't be done since the text of Art. 5 prohibits an amendment that does such a thing. Even if s1 abrogates the limitation while s2 deprives, the fact that s2 deprives means the whole amendment runs afoul of the limitation.

Complex Case: one amendment abrogates the limitation, another deprives. Thereby the first does not run afoul of the limitation, and if the first is successful, there is no limitation for the second to run into.

Provided ... that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

(1) the plain text reads most easily as a blanket prohibition on using any amendement process to deprive. I don't see any other non-tortured reading to be made here. This is essentially my quick answer. If we allow what you want, the text cannot be given its meaning.

(2) Suppose Amend. X passes, abrogating the limitation on deprivation of sufferage.

Presumably, X cannot do anything Art. 5 does not empower. It's like passing the original Gun Free School Zones law under the commerce clause - the constitutional power that putatively allows the legislation must have sufficient power to support the legislation. Likewise, if Art. 5 empowers amendments, amendments cannot exceed the power of Art. 5.

Since the text of Art. 5 outright bans a deprivation, no future amendment can go further than Art. 5 allows.

So if the people then pass Amend. Y which deprives Texas of equal sufferage in the senate on the basis of Amend. X, X being itself limited by Art. 5 cannot be a sufficient basis for Y. X itself would be a nullity as Art. 5 did not grant sufficient power for X to do what it says it will. In other words, Amend. X needs a 520V outlet to operate and Art. 5 is only a 120V outlet.

That argument is similar to ones saying the Congress can't use federal money to entice the states to do certain actions Congress can't do under the Commerce Clause. The Supreme Court didn't buy that one.

I see a commerce clause parallel (see above), but I just don't see your spending power parallel. Elaborate ...

[Imran Siddiqui]

your reading fails to give any meaning to the actual text of Art. 5. It is phrased as a limitation, but if the limitation can be removed it is not really a limitation is it?

Of course it is... it is simply a removable limitation... just like how Congress gets around the Commerce Clause by spending penalities.

Since the text of Art. 5 outright bans a deprivation, no future amendment can go further than Art. 5 allows.

Unless the text is altered. Then any future amendment can go further than Art. 5. MANY amendments have gone further than original Constitutional mandates. They have gone further than the original Constitution allows. That was the point.

I see a commerce clause parallel (see above), but I just don't see your spending power parallel. Elaborate ...

Congress can get around it's Commerce Clause limitations by using its spending power. Such as there can be federally supported Gun Free Zones, but through the coercion of saying you don't get 100% of the education money we said you were.

The Commerce Clause doesn't allow them to do so, but they can get around it. Under your argument the Congress should not be able to do so. The Commerce Clause is a limit, and by using the spending clause they are going over the Commerce Clause limit.

In South Carolina v. Dole, the SCOTUS said that was alright for Congress to do.

[The Templar]

Originally posted by Imran Siddiqui
Of course it is... it is simply a removable limitation... just like how Congress gets around the Commerce Clause by spending penalities.

That's closer to if there were two ways to amend the Constitution. But if Art. 5 is like the commerce clause, where is the metaphorical spending power? Legislation may have at least two hooks, but amendments only have the one.

Unless the text is altered. Then any future amendment can go further than Art. 5. MANY amendments have gone further than original Constitutional mandates. They have gone further than the original Constitution allows. That was the point.

And Art. 5 is designed to extend the constitution - but two directions are prohibited. No biggie. Another way to think of this is if the northern states back in 1795 had passed Amend. X to disable the prohibition on amendments ending the slave trade, followed by Amend. Y that ended the slave trade in 1796. Would this have been acceptable to the south? Would the southern states that fought to add that prohibition on the amendment power understand this as a proper reading? I just don't think so.

Congress can get around it's Commerce Clause limitations by using its spending power. Such as there can be federally supported Gun Free Zones, but through the coercion of saying you don't get 100% of the education money we said you were.

The Commerce Clause doesn't allow them to do so, but they can get around it. Under your argument the Congress should not be able to do so. The Commerce Clause is a limit, and by using the spending clause they are going over the Commerce Clause limit.

In South Carolina v. Dole, the SCOTUS said that was alright for Congress to do.

I know that (hey, I took con law and 11th Amend jurisprudence). I just don't see what parallel you are trying to draw with Art. 5.

Both the spending power and the commerce power (and Amend 13, s2 and Amend 14, s5 for that matter) are limited. E.g. the commerce power post Lopez can only support legislation that actually has some connection to commerce, and the spending power can only bribe, not compel. Likewise, the power to amend the constitution has its limits.

[Imran Siddiqui]

Another way to think of this is if the northern states back in 1795 had passed Amend. X to disable the prohibition on amendments ending the slave trade, followed by Amend. Y that ended the slave trade in 1796. Would this have been acceptable to the south?

If there was a chance of this happening (not likely with Southern states being more than 1/3rd) they would have probably included in the article a provision saying that statement could not be struck out by amendment.

Both the spending power and the commerce power (and Amend 13, s2 and Amend 14, s5 for that matter) are limited. E.g. the commerce power post Lopez can only support legislation that actually has some connection to commerce, and the spending power can only bribe, not compel. Likewise, the power to amend the constitution has its limits.

But can be gotten around. This way by striking the offending clause itself. My point is that there are ways to get around clauses in the Constitution. The spending clause and commerce clause are only relatively limited. They can be gotten around. Article 5 can also be gotten around by striking the 2nd part of the article, which is not a forbidden act by that article... it's just creative lawyering.

[Ned]

Originally posted by chegitz guevara
Traditional marriage is in decline in much of Europe, Ned. More and more couples are content to co-habitate for their whole lives.

Agreed. But the question is this: Is the decline greater in countries that permit homosexual civil unions?

[Ned]

Originally posted by Boris Godunov


Post Hoc fallacy. Marriage rates in France and the rest of Europe were in decline prior to the legalization of civil unions, as they were in every Western country. There was no increase in the rate of decline after adopting civil unions. This is just another bit of statistical slight-of-hand the religious right is trying to use, but it's so easy to see the logical fallacy it's painful.

It may be related to the decline of religion as a whole in Europe, which does correspond, in a sense, to the legalization of gay marriages.

[Ned]

BTW, I understand Kerry is against gay marriages, but voted against the DoMA.

He is also in favor of the state's right to decide, but voted to strip them of this right by his vote against the DoMA.

He appears to have changed his position.

[Giancarlo]

Kerry is all over the map. He's a raving hypocrite and he can't hold an opinion without flipping. I hate him a lot more than any dislike I have for Bush for pushing this amendment.

[Ned]

Giancarlo, there is no possibility that an amendment will get passed in the Senate until the Supremes have had a change to weigh in on the DoMA. If they sustain the Act, the question of a constitutional amendment may be moot. If they overturn it, then action might be needed, but it is not often that Congress acts to overturn the Supreme Court by passing a constitutional amendment. It took a civil war to effectively overturn the Dred Scott decison.

[Giancarlo]

Well doesn't an amendment need 2/3 of the congress to pass? Which I think is highly unlikely for it to pass.

[Ned]

The States could call a constitutional convention if the Senate and House refuse to act. There are enough states that have passed anti-gay marriage legislation to make such a call.

But the real crisis will happen shortly when some gay couple files a US tax return and is denied their filing status due to the DoMA. I expect a lawsuit could be on file by March 2, which is the next filing deadline. The court action could ge fast and furious very shortly.