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unintended consequences of amendments

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  • Greg Cannon
    http://hnn.us/articles/5919.html July 13, 2004 7-12-04: News at Home The Unintended Consequences of an Amendment to Ban Gay Marriage By David E. Kyvig Mr.
    Message 1 of 1 , Jul 13, 2004

      July 13, 2004

      7-12-04: News at Home

      The Unintended Consequences of an Amendment to Ban Gay
      By David E. Kyvig
      Mr. Kyvig, Distinguished Research Professor and
      Professor of History at Northern Illinois University,
      is the author of UNINTENDED CONSEQUENCES OF
      CONSTITUTIONAL AMENDMENT (2000). He is a writer for
      the History News Service.

      Current vocal advocates of a constitutional amendment
      banning gay marriage ought to consider the old Chinese
      adage, "Be careful what you wish for, because you may
      get it."

      A gay marriage amendment, if adopted, could produce
      unintended and fateful consequences for the U.S.
      Constitution. Some of the possible results are certain
      to prove distasteful to the proposal's supporters, not
      to mention damaging to confidence in our
      constitutional system.

      In amending the Constitution, unintended consequences
      should not be shrugged off lightly. Once an amendment
      is adopted, it can only be altered or removed by
      another amendment. Since a two-thirds vote in each
      house of Congress and ratification by three-fourths of
      the states is needed to approve any amendment, a small
      but zealous minority of Congress or state legislators
      can block the repair of a mistake. If we amend in
      haste, we will likely have to endure the result
      regardless of how much we come to regret it.

      The nation's constitutional history is full of
      instances when the outcome of amendments varied from
      the original intent of those who adopted it. The 1919
      amendment prohibiting all commerce in alcoholic
      beverages provides the clearest example that a
      constitutional amendment can have profoundly important
      unintended consequences. Though outvoted by temperance
      proponents, a significant minority of Americans saw
      nothing wrong with drinking alcohol. After
      ratification, many citizens imbibed homemade
      concoctions or illegally purchased beverages.
      Bootleggers, indifferent to the dry law, seized the
      opportunity to profit by satisfying the nation's
      thirst. The amendment failed in spectacular fashion to
      achieve the temperance movement's desired result, as
      is also likely to happen with a gay marriage

      Organizations quickly arose to seek prohibition's
      repeal. They argued that the law simultaneously
      deprived the government of substantial tax revenue and
      created enforcement costs. They concluded that
      prohibition undermined general respect for law as well
      as the Constitution. Still, despite the widespread
      displeasure with its unanticipated results, repeal
      became possible only in 1933 through the extraordinary
      circumstances of the Great Depression and the
      momentary discrediting of the Republican Party that
      had sought to enforce the dry law.

      Earlier, even the Bill of Rights and the
      Reconstruction amendments of the 1860s evolved in ways
      that their drafters could scarcely have imagined. So
      too did the seemingly simple 12th Amendment adopted in
      1804 to remedy flaws in the presidential election
      system. It inadvertently reduced the vice presidency
      from a position held by the leader of the country's
      second most powerful political party to one occupied
      by a secondary figure in the most powerful party. One
      of the nation's two nationally elected officials thus
      became far less influential in policy decisions, which
      marked a setback for the democratic nature of the
      Republic. The three most recent amendments, dealing
      with presidential succession, voting by 18-year-olds
      and congressional pay, have produced unexpected
      results as well.

      An anti-gay marriage amendment is likely to generate
      many unintended consequences. Refusing gay unions
      legal sanction will certainly not prevent the
      formation of loving and enduring gay and lesbian
      relationships. As with prohibition, an amendment would
      not end the dispute over cultural values, but it would
      erode the always fragile sense that laws deserve
      respect and obedience regardless of personal

      In addition, regard for the Constitution as a
      protector of the inherent equal rights of all citizens
      would be weakened, at least among a significant
      portion of the American public. Some people will
      realize that other minority practices could face
      similar threats from a majority indifferent to the
      principle of equal protection for all.

      Marriage itself could also be an unexpected victim of
      the anti-gay amendment. A declaration that government,
      not the individuals involved, has the authority to
      determine which couples may wed could well lead to a
      general questioning of the merits of obtaining state
      sanction for a personal relationship. Denial of
      spousal benefits to same-sex couples could stir a
      powerful argument that a wide range of matters from
      health care to hospital visitation rights to joint
      filing of income taxes ought to be fundamentally
      reconsidered if some couples were to be excluded from
      fair and equal protection of law. In the past
      Americans have displayed remarkable inventiveness in
      response to constitutional amendments, and there is
      every reason to expect they would do so again.

      The record of attempts to amend the Constitution
      suggests that the odds against any proposal being
      adopted are very long. Of some 14,000 amendments
      offered in Congress, only 33 achieved the necessary
      two-thirds approval by both House and Senate, and a
      mere 27 have been ratified by three-fourths of the
      states. Enough of that handful have produced
      unforeseen results to justify caution in approaching
      constitutional reform.

      In the end, those who oppose a constitutional
      amendment banning same-sex marriage, even when they
      personally oppose the practice, are prudent protectors
      of the Constitution. Those who call for the amendment
      without a thorough investigation of potential effects
      irresponsibly jeopardize faith in the U.S.
      constitutional system.

      This piece was distributed for non-exclusive use by
      the History News Service, an informal syndicate of
      professional historians who seek to improve the
      public's understanding of current events by setting
      these events in their historical contexts. The article
      may be republished as long as both the author and the
      History News Service are clearly credited.
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