A Constitutional Amendment Primer
The proposed Constitutional anti-flag-burning amendment has gone down by one vote. Like a lot of liberals, I'm glad to see that it did. Even now, when it's not strictly prohibited, flag burning is a very rare form of protest, and passing a law against it won't make it rarer. In fact, it could make it more common. But it's important for people to keep in mind how Constitutional amendments work--especially now that the conservative "plan" to pass such unpopular measures as a ban on abortions, a ban on gay marriages, and a ban on flag burning relies on passing Constitutional amendments.
Because the Constitution is a framework rather than a set of statutes, an amendment doesn't actually make anything illegal. It merely authorizes the legislative branch or the legislatures of the several states enact laws that make something illegal. As tough as it is to get an amendment passed, it's only half the battle. Here's the entire process.
First, the House and the Senate must pass identical resolutions by a 2/3 majority. That means 67 Senators and 290 Representatives have to vote in favor of it. There's no requirement for a Presidential signature and no possibility of a Presidential veto; a President who expresses support for or opposition to an amendment really can't do anything more than you or I--unless he chooses to use his political influence to get votes in Congress. Once the resolution has passed both houses with exactly the same text, it goes to the states. Three-fourths of the state legislatures--that is, 38 of them--have to ratify the amendment, and they must ratify it within a set time limit. One legislative ratification too few and the amendment is not enacted. Because state legislators are very sensitive to local priorities--and because state and local governments are dealing with issues that affect most citizens every day, like fire and police protection, transportation, sanitation, and education, proposed amendments to the Federal Constitution don't float automatically to the top of the legislative hopper. Some legislatures may postpone consideration of an amendment in hope of a more or less sympathetic legislature after an election.
If the amendment passes and the states ratify it, the Constitution authorizes passage of laws. Now, if the Congress is authorized to act, bills have to be passed in both houses. While the bar isn't as high for a bill as it is for an amendment, the Houses still have to pass identical acts. In many instances, that takes some doing. For example, just what does "physical desecration" of the flag mean? Does it include President Chickenhawk autographing a small flag offered to him by an admirer? How is the burning of a flag that needs to be disposed of differ from desertation by burning? Assuming the Houses of Congress can agree on these details and enact a law, it now has to be signed by the President--who very probably isn't the one who was in office when the amendment made its way through Congress. If he vetos it, the veto stands unless it is overriden. And, of course, there may be challenges in the Supreme Court.
Here's the bottom line: Amendments are tough. They average out to less than one every ten years because the first ten were passed together. The odds against passage of a proposed amendment are huge. Only once--Prohibition--has a really dumb idea become an amendment. Elected officials and those who advise them know this. They understand that they can piously promise an amendment and then claim that it didn't pass because of their opponents' partisanship. Good ideas, like extending equal rights to women in the workplace, couldn't get ratified by the states. So offering to get an amendment passed is most often a great way of promising nothing. That's what the conservatives really want: a promise that they'll never be able fulfill with respect to an issue that they can bring up again and again. Their hope in this is that voters will never understand the process well enough to understand that what they regard as no-brainer amendments don't have much chance, and they're being played for fools by cynical men like Karl Rove.
Because the Constitution is a framework rather than a set of statutes, an amendment doesn't actually make anything illegal. It merely authorizes the legislative branch or the legislatures of the several states enact laws that make something illegal. As tough as it is to get an amendment passed, it's only half the battle. Here's the entire process.
First, the House and the Senate must pass identical resolutions by a 2/3 majority. That means 67 Senators and 290 Representatives have to vote in favor of it. There's no requirement for a Presidential signature and no possibility of a Presidential veto; a President who expresses support for or opposition to an amendment really can't do anything more than you or I--unless he chooses to use his political influence to get votes in Congress. Once the resolution has passed both houses with exactly the same text, it goes to the states. Three-fourths of the state legislatures--that is, 38 of them--have to ratify the amendment, and they must ratify it within a set time limit. One legislative ratification too few and the amendment is not enacted. Because state legislators are very sensitive to local priorities--and because state and local governments are dealing with issues that affect most citizens every day, like fire and police protection, transportation, sanitation, and education, proposed amendments to the Federal Constitution don't float automatically to the top of the legislative hopper. Some legislatures may postpone consideration of an amendment in hope of a more or less sympathetic legislature after an election.
If the amendment passes and the states ratify it, the Constitution authorizes passage of laws. Now, if the Congress is authorized to act, bills have to be passed in both houses. While the bar isn't as high for a bill as it is for an amendment, the Houses still have to pass identical acts. In many instances, that takes some doing. For example, just what does "physical desecration" of the flag mean? Does it include President Chickenhawk autographing a small flag offered to him by an admirer? How is the burning of a flag that needs to be disposed of differ from desertation by burning? Assuming the Houses of Congress can agree on these details and enact a law, it now has to be signed by the President--who very probably isn't the one who was in office when the amendment made its way through Congress. If he vetos it, the veto stands unless it is overriden. And, of course, there may be challenges in the Supreme Court.
Here's the bottom line: Amendments are tough. They average out to less than one every ten years because the first ten were passed together. The odds against passage of a proposed amendment are huge. Only once--Prohibition--has a really dumb idea become an amendment. Elected officials and those who advise them know this. They understand that they can piously promise an amendment and then claim that it didn't pass because of their opponents' partisanship. Good ideas, like extending equal rights to women in the workplace, couldn't get ratified by the states. So offering to get an amendment passed is most often a great way of promising nothing. That's what the conservatives really want: a promise that they'll never be able fulfill with respect to an issue that they can bring up again and again. Their hope in this is that voters will never understand the process well enough to understand that what they regard as no-brainer amendments don't have much chance, and they're being played for fools by cynical men like Karl Rove.
posted by amsterdr at 5:38 PM
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