The Constitution of the United States is notoriously difficult to amend – by the amendment process. In the past 40 years, however, particularly since the school prayer cases of the 1960s, the Constitution has proved fairly easy to amend – by judicial decree.
Judicial amendment of the Constitution, which is judicial activism in its most extreme and damaging form, has become commonplace in our time. The cases include Engel v. Vitale (1962, striking down recitation of prayers in public schools), Eisenstadt v. Baird (1972, striking down laws prohibiting the distribution of contraceptives to the unmarried), Roe v. Wade (1973, wiping out the laws of all 50 states protecting the lives of the unborn), Texas v. Johnson (1989, striking down the laws of 48 states and the national government outlawing the protest burning of the American flag), Romer v. Evans (1996, overturning a state constitutional amendment barring special civil rights for homo-sexuals), and, most recently, Lawrence v. Texas (2003, declaring unconstitutional state laws criminalizing acts of sodomy).
Many more such cases could be cited, particularly in the area of proscriptions on obscenity and the regulation of pornography, where the philosophy of radical individualism advanced by today’s Supreme Court has led to new protections for nude dancing and unfettered access to pornography on the Internet. In each of these instances, to borrow the vivid phrasemaking from Robert Bork’s book Slouching Toward Gomorrah, the Supreme Court did not root its decision in the language or history of the Constitution, but merely chose to “enlist on one side of the culture war.”
On reflection, it is hardly surprising that these judge-made revisions of the Constitution have occurred in a period of relative stability in the text of that document. The constitutional revolution now well advanced was made by a cultural elite that fashioned its reputation on ignoring established rules of all kinds. In the past 40 years the Constitution has been successfully amended only to lower the voting age in federal elections to age 18 (1971) and to prohibit members of Congress from voting themselves pay increases (1992). The latter amendment was something of a stray car, first ratified by Maryland and North Carolina in 1789 and revived in the modern era after controversy over a spate of Congressional pay hikes. A disinterested observer looking at the text of the Constitution from 1965 to the present would conclude that there was very little going on to shake up the foundations of our law.
As we know, that observation would be a gross error. Indeed, if the meaning of the Constitution can be altered dramatically by vote of just five justices, of what attraction is the arduous amendment process, where the concurrence of two thirds of the members of both Houses of Congress and of the legislatures of three-fourths of the states is necessary to change even a comma of that document? Impatient to enforce their legislative preferences, a judicial elite can nudge (or even shove) American society in a direction they believe is inevitable, trusting that public opposition will wane as it proves ineffective in resisting the court’s dictates.
The attempts by legislators and citizens’ movements to correct the judicial activism of the past 40 years only underscore the enormous difficulty of the ordinary means of amendment. Members of Congress have drafted and voted on proposed constitutional amendments to correct the interpretation of activist judges on flag-burning, prayer and other topics, and these proposals have often enjoyed both tremendous popular and Congressional support. Public support for a constitutional amendment to reverse Texas v. Johnson has ranged as high as 71 percent. Interestingly, this is almost the same percentage of members of the House of Representatives (298-125, or 70.4 percent) who voted to support an anti-flag desecration amendment in July 2001. This amendment foundered in the U.S. Senate, which has often been the graveyard of court-reversing legislation.
Generally, action to overturn the Supreme Court’s prayer decisions (the latest have involved bans on prayers at graduation ceremonies and school athletic events) has enjoyed even higher levels of popular support than action on flag-burning. Rep. Ernest Istook, Republican of Oklahoma, has compiled a list of poll results from 1962 to the present on prayer-related legal issues. The American people overwhelmingly support religious expression in public settings. For a constitutional amendment to allow voluntary prayer in schools, the Gallup poll has produced approval numbers as high as 85 percent in 1983 and 69 percent as recently as 1997.
Popular as these two issues have been, no amendments have been forthcoming from the Congress, although the flag amendment came within four votes of approval in the Senate in March 2000. The key vote on school prayer in the Reagan era came in 1984 on the constitutional amendment sponsored by the late Strom Thurmond of South Carolina, which fell 11 votes short of passage. The conclusion to be drawn from these instances is that the American founders insulated the document they wrote against even popular changes. Something approaching unanimity is needed to accomplish external change of the document. As Michael Schwartz, government relations director of Concerned Women for America puts believes, today no contested amendment can pass. This proved true of the Equal Rights Amendment and a Human Life Amendment.
On January 21, just four members of the House of Representatives cosponsored a new bill, H.R. 3719. The bill is an updated version of the Freedom of Choice Act, legislation drafted by abortion advocates that would enshrine, in a federal statute, the Supreme Court ruling in Roe v. Wade. The Freedom of Choice Act – or FOCA, as it was dubbed – was bandied about in the early 1990s as a means to preserve the national abortion license should the Supreme Court reverse its decision in Roe and its companion case, Doe v. Bolton. The bill garnered a fair number of sponsors in its original version, and the pro-life movement was compelled to mobilize a massive education effort to defeat it.
Still, the new legislation prompts a thought experiment. If our liberal judges have amended the U.S. Constitution internally to comport with their world view, what is the language of the amendments they should have proposed, had they been intellectually honest, to promote their aims? FOCA is a fair approximation of what these advocates want the Constitution to say about abortion – a guarantee of the unfettered right of the mother to end her pregnancy at any time until term. But FOCA has never been passed by both Houses of Congress, and there is little evidence to suggest that it could have been passed in 1973 or that it would pass even now, 31 years after Roe and Doe.
These thoughts led me to the drafting, in plain language, of the constitutional amendments our judges have bequeathed, or are in the process of bequeathing, to us now – none of them approved by Congress, none ever debated or voted upon, and none, as worded, ever introduced. It would be interesting to see how many of these amendments, which I have deemed The Bill of Wrongs, could attract more than a few dozen cosponsors were they introduced in Congress today, even as they operate as the law of land.
The Bill of Wrongs
Neither the federal government nor any state shall permit any government-sponsored- or supported-event, official observance, or public document to include within it any reference to the existence of an Almighty God, including any statement of Thanksgiving to such an entity for the blessings, if any, bestowed upon this nation.
The right of a mother to authorize a doctor to end the life of any child developing within her womb, from conception until the completed term of pregnancy at nine months, shall not be limited by the federal government or by any state; this article shall apply up to and including the birth of the child so long as the head of the child is not actually delivered from the mother’s womb.Public funding of these decisions for indigent persons shall be mandatory.
Neither the federal government nor any state shall fund any portion of the education of any child that is not carried out in its entirety in a school in which Amendment XI is enforced by public notice and professional practice, nor shall the federal government or any state fund any portion of the education of any child in any school where the rights accorded by Amendment XII are not guaranteed and implemented via medical referral without parental knowledge.
The individual person, regardless of age, shall be absolutely autonomous with respect to all decisions regarding consensual sexual conduct, the person or persons with whom such conduct is conducted, the sex of such persons, and the manner of such conduct; all federal and state laws respecting and honoring any decision of an individual in this zone of autonomy shall respect and honor all decisions of every individual in said zone.
The President of the United States shall authorize and engage in the defense of the United States only under such terms and conditions as established by present and future resolutions passed in the General Assembly of the United Nations by majority vote and by unanimous vote of the Security Council.
The individual person, regardless of age, shall have the right to produce, disseminate, and consume those materials formerly known as pornographic or obscene in any setting, format, or manner that, in his or her autonomy, the individual deems appropriate.
Prostitution shall from this day forward be known as “sex working” and neither the federal government nor any state shall prohibit this form of remunerative labor or deny to its participants any rights or benefits available to other employees under federal and state labor law.
From the date of the ratification of this amendment forward, those chemicals and devices now covered under federal narcotics control schedules shall be made legal and provided at public clinics, free of charge, provided that clean needles and other sterilized equipment are made available for use.
The right of parents to object to, or deny their children full access to, any of the rights and benefits outlined in the foregoing amendments shall be immediately suspended.
The right of every citizen to burn the flag or otherwise trample it in the name of freedom shall not be abridged.
Admittedly, some of the verbiage included in this new Bill is fanciful. Unfortunately, the core concepts are not; they are very much a part of what has become our post-modern, post-Christian, living and evolving Constitution. It is certainly not impossible to imagine a Constitution that reads as these amendments do – a libertine society might well decide that these were in fact its actual and true Bill of Rights. It is another thing to imagine such a society enduring.
How do we amend these amendments? The task will not be easy. The external route is hard, but, as with the pending Federal Marriage Amendment (in a new low of absurdity, a federal constitutional amendment is needed to correct the error of a 4-3 state court majority), it must be tried. In the long run, however, like any good medicine, the remedy here must be internal. Our courts must be populated once again by men and women who understand that our constitutional heritage is precious, that change must come, if it comes at all, slowly and with the full debate of officials directly accountable to the voters. Only then will it be obvious again how wise a system it was that made the Constitution difficult to change by anyone.
Charles A. Donovan is a writer and executive director of the Family Action Alliance in Washington, D.C.