Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: SATURDAY, January 28, 1995 TAG: 9501310013
SECTION: EDITORIAL PAGE: A9 EDITION: METRO
SOURCE: MATTHEW J. FRANCK
DATELINE: LENGTH: Long
Leaving aside the desirability of any given amendment, you ask whether each of four proposals currently being discussed passes a ``threshold test of making sense procedurally.'' As I understand it, your idea of procedural good sense is satisfied only when a proposed amendment solves a political problem that can be solved only by means of a constitutional amendment and in no other way because something presently contained in the Constitution impedes the attainment of the desired goal and must be altered or removed.
By this criterion, you endorse discussion of the proposed amendments on term limits and school prayer, but not discussion on a balanced budget and unfunded mandates. The second pair on the list ``would change nothing now in the Constitution,'' you write, while the first two seek results to which the Constitution now poses obstacles.
You're wrong on two counts, both in your citation of examples and in setting the standard of what is worthy of discussion.
First, while it's true that Congress can balance a budget and cease issuing unfunded mandates any time it musters the political will, it's likewise true that people have, right now, every opportunity to exchange old congressmen for new ones by the simple expedient of our existing electoral system. If the object of term limits is the regular freshening of the legislative bloodstream, as a constitutional matter it's already entirely within our power.
As for voluntary prayer in public schools, you write that the Constitution ``appears to prohibit'' it at present. But this view can be sustained only by a series of dubious assumptions, beginning with the assumption that the Supreme Court has the last word in deciding such contentious matters. Suffice it to say that there are ways short of constitutional amendment to undo what the court has done on questions such as this.
But second and more importantly, your criterion of procedural good sense is flat wrong in the first place - at least by the standard of most of the amendments already attached to the Constitution, which you would no doubt defend.
Omitting, as you did, the two prohibition amendments as canceling each other out, the fact of the matter is that only six of the other 25 amendments accomplished objects that could be attained in no other way than by constitutional amendment. (These would be the 11th, 12th, 17th, 20th, 23rd and 25th - and the fact, dear reader, that our good editors are looking these up now to find out what they say is evidence that they're generally thought to be the less momentous amendments.)
Is it possible that free speech and the press and freedom of religion could be protected without the First Amendment? You betcha. Could we possibly protect adequately the rights of the criminally accused without the Fourth, Fifth and Sixth? Sure we could. These amendments, and the rest of the Bill of Rights, fail your procedural threshold criterion because they change nothing in the pre-existing Constitution, nor remove any obstacle to the attainment of any good we seek.
No amendment was necessary - as a constitutional matter - to abolish slavery; to mandate that states treat blacks as full citizens with civil rights; to eliminate discrimination by race or sex in voting rights; to lower the minimum age of voters to 18 nationwide; or to limit presidents to two terms in office, if the people thought it vital to deny a third term to anyone seeking it. Thus, the 13th, 14th, 15th, 19th and 26th amendments, in each case, changed nothing about what the text of the Constitution said or meant before they were added, nor were they required to open up any closed possibility in what the law of the land permitted.
The Constitution didn't previously preserve slavery, deny full civil rights, or limit suffrage in any way. Of those just described, only the 22nd (on presidential terms) makes a change in what the text previously meant, and that is by closing off a possibility previously open. Yet in every case, as with the Bill of Rights, what was already a constitutional possibility - free speech, fair trials, abolishing slavery, broader suffrage, etc. - was thought to be so politically vital, and so much in jeopardy in the absence of constitutionalizing language on the issue, that amendments were thought necessary.
The American people sometimes conclude that certain goals, however possible through ordinary political channels, need to be placed beyond ordinary politics. So rethink these matters, dear editors. You may find that none of the amendments currently on the table aims at anything that is otherwise impossible by more ordinary political means. But as with most amendments in the past, that's no reason to gavel the discussion to a pre-emptive conclusion. Let a true debate begin on all four of these proposed amendments.
Matthew J. Franck is assistant professor of political science at Radford University.
by CNB