Austin American-Statesman - Amending the Constitution: A Process That Lets the People Speak

Amending the Constitution: A process That Lets the People Speak

Saturday, June 12, 2004

Austin American-Statesman

By John Cornyn

The U.S. Constitution, after more than two centuries, remains the world's most powerful expression of mankind's commitment to democracy. It is strange, then, that anyone would disparage the democratic process established by that document for proposing and ratifying constitutional amendments.

The founding fathers insisted on including an amendment process in the Constitution because they humbly believed that no man-made document could ever be perfect. As George Washington, head of the Constitutional Convention in Philadelphia, stated in his famous 1796 farewell address as president, "The basis of our political systems is the right of the people to make and to alter their constitutions of government." Similarly, James Madison, the father of the Constitution, wrote that "useful alterations will be suggested by experience," and that an amendment process must be available, lest the Constitution be allowed to "perpetuate its discovered faults."

There is no risk that the Constitution will ever be amended casually or recklessly, or without broad consensus, because our founders crafted an amendment procedure that requires the approval of two-thirds of both Houses of Congress and three-fourths of the states-the most democratic process we have. They also understood that, had they not included an amendment process, the Constitution likely would not have been ratified. As historians have noted, the power to amend was essential to securing ratification in the important states of Massachusetts, Virginia and New York.

The amendment process was deliberatively considered and wisely crafted. We have no reason to fear it. We have amended the Constitution 27 times, most recently in 1992 to regulate Congressional pay increases. The sky will not fall if Americans exercise their democratic rights to amend it again.

This power belongs to the people through the democratic process-and not to the courts, including the U.S. Supreme Court. Yet the courts have altered the Constitution-under the guise of interpretation-far more often than the people have. Legal scholars across the political spectrum agree that constitutional amendments are the only way for the people to reverse judicial constitutional decisions they reject. (Examples include the 11th, 14th, 16th, 19th, 24th and 26th amendments.)

Members of both parties have supported constitutional amendments. Indeed, in the current Congress, amendments have been introduced or co-sponsored by a clear majority of Democratic and Republican senators.

The Flag Protection Amendment, a bipartisan amendment introduced by Sens. Dianne Feinstein, D-Calif., and Orrin Hatch, R-Utah, would give constitutional recognition to the U.S. flag, a unique symbol of our nation. The amendment would not, as the American-Statesman and others have incorrectly said, "make burning the American flag a crime."

In fact, the amendment merely restores to Congress the authority to enact laws protecting the flag-a power that was recognized by the Supreme Court in 1974 and supported by, among others, Chief Justices Earl Warren and William Rehnquist, and Justices Lewis Powell, Byron White, Hugo Black, Abe Fortas, John Paul Stevens and Sandra Day O'Connor-and endorsed by 80 percent of the American people.

Another important amendment would ensure that Congress will remain fully functional in the wake of a catastrophic terrorist attack, so that Americans will never have to suffer under martial law. This amendment simply implements the unanimous recommendations of the bipartisan Continuity of Government Commission, led by former Presidents Jimmy Carter and Gerald Ford. Sen. Russ Feingold, D-Wis., the ranking Democrat on the Constitution subcommittee, praised and voted for the amendment.

The bipartisan Federal Marriage Amendment simply defines marriage as the union of one man and one woman-reflecting (at least until recently) the laws, traditions and customs of all 50 states, as well as the bipartisan federal Defense of Marriage Act. No state legislature has ever acted to depart from that legal tradition.

Courts should not abuse their constitutional authority and make a mockery of the democratic process by redefining marriage by judicial fiat. Yet legal scholars recognize that, without an amendment, courts will redefine marriage nationwide, despite the overwhelming will of Americans.

We honor our founders best, not by disparaging the deliberative constitutional process they carefully crafted, but by debating the relative strengths and weaknesses of any particular proposal. We should not fear the democratic process of constitutional amendment. To the contrary, we should be proud of the process that they created.

Cornyn, a Republican, is the junior senator from Texas