Constitution-amending is in the air. President Bush's support for a constitutional amendment that would effectively ban gay marriage has pushed the issue onto a Congressional agenda that is already filled and more. But even if many Congressional leaders would prefer to keep their agenda to a minimum--do the budget and appropriations, declare victory and get out of town--they can't avoid this issue this year.
Senate Judiciary Chairman Orrin Hatch (R-Utah) has already indicated he will fast-track the amendment, moving it to the floor as quickly as possible. In the House, there is more reluctance to move this amendment along in the emotion of the moment. Indeed, key figures such as Judiciary Chairman Jim Sensenbrenner (R-Wis.) and Rules Chairman David Dreier (R-Calif.) have indicated their opposition, at least at this time, to an amendment.
Here is what Dreier said on "Hardball": "I don't believe that we should work to amend the Constitution as a pre-emptive strike on this question. I think that what we need to do is we need to allow the judicial process to work. . . . And I believe that's the reason we have a third branch of government, the judicial branch. And that's the route we should take before any action is taken here in the Congress."
Good for Jim Sensenbrenner and David Dreier. I have, of course, taken both to task for their unwillingness even to grapple with the need or desirability for a constitutional amendment to create emergency interim appointments in the event a major terrorist attack on the Capitol leaves large numbers of lawmakers dead or disabled. But at least these two veteran lawmakers are not in the position of many of their colleagues--willing to support any constitutional amendment that comes along--unless it deals with the structure and function of government.
Let's step back and review the bidding on constitutional amendments. First, the larger picture: In the past 215 years, we have had 27 amendments, an average of one every eight years. The first 10--the Bill of Rights--were ratified en bloc two years after the Constitution itself. Two others--one on suits against states, the other to correct problems that became clear in the 1800 election--were ratified soon thereafter. That leaves 15 amendments over 200 years, or an average of one every 13.3 years. In fact, it took 61 years to go from the 12th to the 13th amendments, one of three enacted in short order to deal with the issues of the Civil War era, including a prohibition on slavery and provision of equal protection under the laws and voting rights for all races and colors.
Prohibition stands out as the only amendment ever ratified that did not deal with expanding or protecting individual rights (especially voting rights), altering procedures for election or succession or clarifying the powers of the branches of government. No wonder it was repealed.
What is the point? We do not amend the Constitution lightly, or often, and focus relentlessly on the three areas above. That is as it should be. But that is not to say that Congress has not jumped eagerly into the fray to attempt to amend the Constitution, especially in recent years. Since the 103rd Congress, the House Judiciary Committee has held at least 25 hearings on constitutional amendments; the Senate Judiciary Committee has held 19.
This has not simply been an exercise to kill the amendments with kindness. A balanced budget constitutional amendment was brought up by the Senate in 1994, where it failed by four votes to get the two-thirds' support necessary to pass it. It was passed by the House in 1995 but again failed in the Senate, this time by three votes. It was brought up on the Senate floor again in 1997, where it failed by just one vote.
Amendments to ban flag burning were passed on the House floor in 1995 but failed in the Senate, 63-36. The issue was brought up on the Senate floor again in 2000, this time failing 63-37. A term-limits amendment failed on the House floor in 1995. An amendment to require two-thirds' support in Congress for tax increases failed in 1996, and another tax-limitation amendment failed in 1997. A religious freedom amendment failed on the House floor in 1998. (All got majorities but fell short of the two-thirds hurdle.)
Just for information purposes: Dreier and Sensenbrenner voted "yea" for the balanced budget, flag-burning and religious freedom amendments and voted "no" on term limits. Sensenbrenner co-sponsored the two-thirds vote for tax increases. And Speaker Dennis Hastert (R-Ill.) rarely found an amendment he didn't like; he co-sponsored those on flag-burning, tax increases and religious freedom in the 104th Congress (along with a crime victims amendment that never made it to the House floor) and co-sponsored balanced budget, flag-burning, tax-limitation and religious freedom amendments in the 105th.
Perhaps Hastert will have an epiphany and join Sensenbrenner and Dreier in urging a go-slow approach on this gay marriage amendment. Perhaps the emphasis in the Republican Party platform on the 10th Amendment will convince the majority in Congress that this is an issue best left to the states.
Perhaps this reluctance to amend the Constitution by visible and influential leaders in the House is a newfound abhorrence of constitutional amendments, period--or maybe a new found embrace of the tradition that amendments are reserved for expanding rights and dealing with gaps that changing circumstances reveal in the structure and function of government. We can always hope.
Norman J. Ornstein is a resident scholar at the American Enterprise Institute.