Move to cool Congress' amendment fever

December 23, 1997|By Charles Levendosky

IN THE past few years, Congress seems to think it should create public policy by amending the Constitution. Hosts of amendments are proposed and go through committees with little public debate.

The lessons of the Eighteenth Amendment -- which brought Prohibition, speakeasies and organized crime and made gangsters into heroes -- have been forgotten. It took 14 years to repeal an amendment that was disastrous.

A stable force

The Constitution and the Bill of Rights speak in lofty generalities giving us a framework for government. Their stability has created a body of law and expectation that allows us to live, for the most part, in an ordered society.

A few months ago, the U.S. House passed the flag desecration amendment that would restrict political dissent and the traditional protections provided by the First Amendment. It will be debated in the Senate next year.

The House Judiciary Constitution Subcommittee is considering a so-called religious equality amendment which would demolish the Establishment Clause of the First Amendment. This new amendment would allow taxpayer funding of churches and religious organizations.

A victims' rights amendment is being considered by the Senate Judiciary Constitution Subcommittee. This amendment, if ratified, would collide with and undoubtedly diminish the protections traditionally granted by the Sixth Amendment to those accused of crimes.

Nine proposed amendments to the Constitution were acted upon in congressional committees during the 104th Congress -- six, so far, in the 105th Congress.

Instead of attempting to solve a social problem through social mechanisms, we developed a tendency to throw a law at it. It used to be that we threw money at problems. Now we throw

laws. But the stakes have been raised, laws aren't enough anymore. Members of Congress want to throw constitutional amendments at social or political problems.

Someone noticed. And in June, more than 60 scholars, attorneys and former government officials announced the creation of Citizens for the Constitution, a non-partisan committee dedicated to educating the public to the danger of this amendment fever.

Former Republican member of the House of Representatives (1976-1993) from Oklahoma, Mickey Edwards, is a co-chairman of Citizens for the Constitution. In an interview earlier this month, he commented on the reason for forming the committee: ''Out of frustration or for other reasons, people have started fairly routinely proposing changes in the Constitution in order to achieve what are really just political aims that ought to be done through the legislative process. Increasingly people are beginning to say, 'we want a certain result, why don't we just change the Constitution?' ''

Mr. Edwards, who is now a lecturer at the John F. Kennedy School of Government at Harvard University, outlined the educational aspect of the organization, ''When people start thinking about whether or not they should amend the Constitution, they should ask themselves these questions: 'Is this really a long-term, transcendent kind of an issue?' 'Is this something more than just a political issue of the moment?' 'Does this change of the nature of the system of government?' ''

Morton Halperin, a former special assistant to President Clinton on the National Security Council and now a member of the working group in the Citizens for the Constitution, noted: ''Amendments were being proposed, and debated and, sometimes, even voted on without a careful consideration of what they would mean and how they would fit with the rest of the Constitution. . . We think the restraint that has always existed, and that we think is proper, is beginning to break down. We don't want to wait until there are three new amendments out there before we try to warn people about the danger.''

Although the committee does not take a position on any particular amendment, Mr. Halperin pointed out that some members of Congress are proposing constitutional amendments for symbolic reasons. Wish to show sympathy for victims, but don't know what to do? Sponsor a victims' rights amendment.

Jack Rakove, who won a 1997 Pulitzer Prize for ''History of Original Meanings: Politics and Ideas in the Making of the Constitution,'' teaches history and American studies at Stanford University. He takes the long view, the historian's view.

''Our political system sometimes generates a kind of impulsiveness about using the amendment route to achieve political ends. Whenever that temptation arises, we ought to think long and seriously about what it means to amend the Constitution as opposed to using other routes to accomplish political ends.

Costly changes

''There are real potential costs in terms of impulsiveness, in terms of inconsistency, in terms sometimes of thwarting majority rule by trying to lock political values of certain kinds into the Constitution as a way to foreclose future debate.

''Basically, all the committee is proposing is not that we treat the Constitution as so written in stone that it can never be altered, but simply to remember that any attempt to alter the text of the Constitution has really far-reaching implications and should only be done with the most thorough consideration.''

Unfortunately, some of our members of Congress are so involved in power politics, so addicted to political advantage that they cannot see the ramifications of their proposals.

The committee is important, but in the end, only an informed electorate has the power to put amendment fever on ice.

Charles Levendosky, editorial page editor of the Casper (Wyo.) Star-Tribune, has a national reputation for First Amendment commentary.

Pub Date: 12/23/97

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