Keep it short

March 15, 2004|By Julie Mertus

WASHINGTON - "Your Constitution is so lovely, so nice and short. How do you keep it so short?"

The year was 1995, and the woman asking the question was a schoolteacher in a dusty mining town in Ukraine, but she could have been any number of people from countries undergoing radical constitutional reform at that time. I was one of many Americans involved in civic education projects in democracy wannabes. Wherever I went, everyone marveled that the American Constitution is short on verbiage but long in terms of life span.

I immediately had flashbacks to Ukraine when President Bush announced support for a constitutional amendment prohibiting gay men and lesbians from having access to the civil institution of marriage.

In Ukraine, I handed out pocket-sized versions of the U.S. Constitution, an idea I borrowed from my Yale Law School professor, Joseph Goldstein, who joked that he kept his with him at all times. "Read it," he would implore his students. If I had a spare one left, I would send it President Bush's way. "Read it."

The Ukrainian schoolteacher marveled at the list of 27 amendments. "How do you keep politicians from adding their own favorite things to your constitution?"

Good question. It is not for lack of trying. At one time, President George H. W. Bush was on record supporting at least five proposed constitutional amendments.

Interest groups often suggest amendments as panaceas for particular social problems, and politicians routinely support these endeavors. Amendments are popular not because they succeed (only 27 out of about 10,000 proposals have ever made it in), but because they draw public attention to an issue.

The short explanation for the small number of constitutional amendments is that it isn't easy. The constitution sets up a cumbersome two-step process.

First, not anyone can propose an amendment. Amendments must be proposed either by a two-thirds majority in both houses of Congress or by a special convention called at the request of two-thirds of the state legislatures. Second, the amendments must be ratified by three-fourths of the states, either by the existing state legislatures or by special state conventions.

A more complete explanation for the small number of amendments would consider why this cumbersome process exists. To understand the amendments at the end of the Constitution, one needs to understand the beginning and middle as well.

My Ukrainian students were not surprised to hear about our three branches of government, each monitored with a system of checks and balances - that was old news. Nor were they unprepared to find evidence throughout our Constitution of support for vigorous political speech and civic participation. But they were taken off guard when I suggested that our democracy also has built-in mechanisms to protect minorities against the tyranny of the majority. It appears as if the White House missed this lesson as well.

Under our country's version of democracy, changing any part of the Constitution should not be subjected to the whims of the majority - or to their prejudices. A conservative approach to constitutional amending would caution restraint on any issue, but especially when it comes to eliminating the rights of an unpopular minority.

Our democratic heritage has long recognized that some things should not be decided by the vicissitudes of politics. The rights of unpopular minorities such as gay men and lesbians are among such things. Just as we should not open up race and sex discrimination to populism, so too we should not do so with the rights of gay men and lesbians.

The hostile climate created by even talk of an amendment may already be forcing many gay men and lesbians into the closet to protect their jobs, to secure health insurance, to maintain child custody and to avoid hate attacks on the street. Invisibility, by definition, strips one of the ability to participate in the political process. Nothing could be more against our democratic traditions.

Most of the amendments to our constitution grant rights and promote political participation. A notable exception is the amendment outlawing alcohol - and that amendment, ridiculed as a gross overstepping of national populism and overturned by amendment, was a tremendous mistake. The forecast for an anti-gay amendment is similarly gloomy.

Julie Mertus, a professor of human rights at American University, is the author of Bait and Switch: Human Rights and U.S. Foreign Policy (Routledge, 2004). She lives in Baltimore.

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