Constitutional Convention?

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Things are still way too hectic but I am hoping be back in full force on the blog soon. In the meantime I did want to toss up a quick post regarding this article by Robert Novak.

Supporters of a constitutional amendment to keep the courts from legalizing homosexual marriage, stunned by poor support in the recent Senate vote, are beginning a campaign for a constitutional convention.

The provision of the Constitution's Article V requiring such a convention if called by two-thirds of the state legislatures has never been used. Fear of throwing the Constitution open to general amendment has overridden support for specific issues. However, key advocates of barring gay marriages believe the constitutional convention strategy will keep the issue alive.

I haven't heard much about this approach... but with 20 states having passing state Marriage Amendments by an average of 71% this could be a viable option (but I am not yet convinced it is the best approach). Without getting too deep into a debate on same-sex marriage itself or the value of the federal Marriage Protection Amendment… what do you think of this approach?

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Terry M said:

Geez. Now THAT is really scary. So, we trash the federal constitution so conservatives can bypass Congress and the Courts to ram even more "religious' social garbage down our throats...Boy, let's just open it up so the frustrated social rightwing can load it up with their fav issues..abortion, guns, outlaw queers and those pesky day workers. Convert to the conservative agenda or else!! Why don't we just throw out all the laws and replace them with (pick a version) the Bible. We can use RFK for the public stonings of the "bad" people. Give me a freakin break.

Sophrosyne said:

So you think using the Constitution's Article V (possibly one of the most democratic facets of our Republic) would be ramming "garbage" down people's throats?

For some reason when I visualize your metaphor I don't see a constitutional convention in the picture.

David said:

Terry, they're desperate. It cracks me up that these folks claim not to be anti-gay, in light of that kind of comment.

Lovell Reiley said:

I think that we should call a constitutional convention when we can be sure that we have men and women to represent us at the convention who offer the same courage and intellect offered by the original framers of the constitution ... people motivated by a powerful vision and an optimistic view of the future rather than by fear of change and, as one commentator has said, a desire to "leverage homophobia" to "brand" our constitution with their so-called traditional values and, I would add, to use 9/11 to justify a fundamental erosion of our basic freedoms.

James Young said:

It's probably my conservative instincts, but I'm ALWAYS suspicious of efforts to amend the Constitution, especially since I'm pretty sure that there are none as brilliant as Madison, Franklin, and the rest of the Framers around to guide it.

That having been said, the Supreme Judicial Court of Massachusetts has read into a state Constitution primarily authored by John Adams the protection of homo "marriage."

It never fails to amaze me when those who push to pervert the Constitution feign surprise when those who support it push back.

winconservative said:

The Convention idea is very unique but it would stand little chance of gaining the approval of 2/3 of our state legislatures. I think the President could have done a much better job in framing his arguement in support of a federal amendment. With 20 states passing this by an average of 70% I don't see this as a "right wing" social issue. This is an issue that a solid majority of Americans care about.

Sophrosyne said:

I too doubt that 2/3 of the legislatures would be on board with a federal amendment (despite the massive support for state constitutional amendments)... I think people have an intrinsic sense of what Jim Young mentioned (natural aversion to augmenting or modifying the work of our Founding Fathers).

Then again, once some rouge federal judge shoots down DOMA or reinvents marriage on the federal level then the whole equation changes and there will likely be a groundswell of support b/c folks can no longer hide under the position that they "support marriage as one man and one woman" and don’t wish to deny children a mom or a dad but don't think that definition is in danger of being fundamentally redefined (not sure what cave they are hiding in).

Imaging a constitutional convention is interesting nonetheless… I wonder how serious these folks are in pursing this option.

Soph, they are pursuing it just as seriously as all other devisive issues, long enough for the elections.

No Relation said:


There can be no doubt the framers were brilliant men. They recognized their inability to predict the future and that's why they left us Article V. It would be an injustice to our great Consitution if we failed to adjust as society progressed.

Unfortunately, federal courts have seized power over US and state legislatures...a power not granted to them anywhere in the Constitution. The amendment process is the only tool we are left with to counter this.

What I would really like to see is an amendment that provides additional checks against the Judicial Branch of our government. That or the Supreme Court itself would have to overturn "Marbury v. Madison"...I doubt that will happen, though.

David said:

It would be an injustice to our great Consitution if we failed to adjust as society progressed.

It certainly would. I'm curious about what it is that you believe we should be adjusting to if not increasing knowledge.

Sophrosyne said:

What about the increasing knowledge that unelected judges are redefining marriage and it is increasingly more likely this will happen here in Virginia?

Just as when the Supreme Court rejected the humanity of an unborn child at any point in pregnancy for any reason, thus subjugating his/her very right to exist to the personal ego, happiness, etc of the mother... this too is a response to the knowledge that raw judicial power is only a heartbeat away unless we act and an unelected judge can too easily reject the very definition of marriage and write a new definition against the overwhelming will of the people (a definition which would encourage the state to willfully deny children a mom or a dad for this higher “happiness” of any two individuals).

This, just as in Roe… is an example of (undemocratically) placing a secondary good above a primary good and in that sense is an example of the increasingly disordered world in which we live.

Singleton said:

The founders did not think their document to be perfect and that's why they placed two mechanisms for changing the Constitution.

It is ridiculous to say that a super-majority of Americans should not be allowed to protect marriage via a federal amendment.

I am a huge fan of originalism and respecting the true meaning of the Constitution, but I believe the founders would applaud a Constitutional convention when our elected Congressmen and Senators have lost touch with their constituents. The only real way to prevent judicial activism is through amendment. I, for one, think the institution of marriage is that important.

As to the eventual success of the contemplated attempt, I agree that it would be an uphill battle, but one worth trying. However, the negative comments above suggest desperation and a real fear that we might succeed. They know as well as we do that if a federal amendment is passed that they have no chance of imposing their agenda on us through the courts.

Jonathan said:

You guys realize that no fault divorce is the statutory change that caused the greatest damage to marriage and that Calfornia Governor Ronald Reagan signed off on that "redefinition", making marriage no longer a lifelong covenant.

If same-sex couples are willing to accept the covenant, doesn't that strengthen marriage? I'm seriously confused by your use of the terms "redefinition" and "agenda". IMHO, neither apply.

Sophrosyne said:


I certainly agree that no-fault divorce legislation has had a tremendous negative impact on the institution of marriage… and yes, Reagan unfortunately was the first to sign such legislation into law.

I am glad you brought up the issue of no-fault divorce because it’s interesting to note that many of the proponents of no-fault divorce (which you rightly recognize makes marriage much less of a lifelong covenant) argued along the same “No Fault Freedom” lines now being employed by same-sex marriage proponents. We were told “how will this affect your loving marriage?”… “this will only help those trapped in abusive marriages and end legal fictions being used to end marriages and will have no impact on your marriage or marriage in general.” We were basically sold the same line being used now that this (same-sex marriage or no-fault divorce) won’t affect anyone else and was merely another option for existing couples in situations where either apply.

Well, what really happened once no-fault divorce spread across the US? Marriage scholar Maggie Gallagher explains it well:

In court, your marriage commitment means nothing. The only rule is: Whoever wants out, wins. By gutting the marital contract, no-fault divorce has transformed what it means to get married. The state will no longer enforce permanent legal commitments to a spouse. Formally, at least, no-fault divorce thus demotes marriage from a binding relation into something best described as cohabitation with insurance benefits.

She goes on provide the evidence needed to reject the lie of “No Fault Freedom”:

Several recent studies, however, confirm what common sense suggests: Changes in divorce law did increase the divorce rate. No-fault divorce laws may account for somewhere between 15 and 25 percent of the increase in divorce that took place in the seventies.
In other words, while there are many social and economic factors conspiring to weaken our marriages, no-fault divorce laws have pushed us over the edge from being a society in which the majority of marriages succeed to one in which (according to demographers’ estimates) a majority of new marriages will fail. When divorce is made quicker and nonjudgmental, more marriages fail. And the story about marriage contained in the law---of marriage as a temporary bond sustained by mutual emotion alone---is becoming the dominant story we tell about marriage in America, eclipsing older narratives about stubborn faith and commitment, "till death do us part."
If you believe altering (or more accurately, removing) an even more fundamental aspect of marriage, arguably the most fundamental and the very foundation of the institution itself (the union of the two complementary parts of humanity, male and female, into the complete human organism & family unit) won’t have any adverse impact on marriage... then I’d like to sell you some lovely riverside property in Brooklyn.

As soon as I find some time I’ll have a full post up on NOVA Town Hall further examining this thought.

Jonathan said:

Looks like we're ready to compromise.

I'll give you covenant marriage if you give me marriage equality.

No we can dispense with this stupid constitutional amendment, because if the precedent is set to take away the liberty to define our families, the next thing you know they'll take away our guns and then they'll take away our beer.

(the problem with prohibition was that they took away the beer and left the guns) :-)

David said:


Re: "the complete human organism,"
do you believe that individual human beings are incomplete, and that they require joining with an individual of the "opposite sex" in order to become complete?

Just asking, because that's what it sounds like.

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