Liberal Math: 4 + 34 > 293,577,434

As I wrote a few days ago, the vote on the proposed Marriage amendment to the US Constitution coming before the Senate, then the House, should not be based solely upon the legislators’ personal feelings. The matter is ours to decide. There are almost 300MM of us out here. We should be allowed to voice our opinion more directly than through 100 Senators, of which only 34 need to vote against the amendment for it to die. Let the matter come to the several States. If not, then for the first time our our country’s history, we may be taking the alternative path to amendment – calling a Convention.

I am not suggesting that the process can or should begin and end with the same proposed text (here is one present version: “Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution or the constitution of any State, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.”)

Of interest, consider the path the familiar 1st Amendment Establish and Free Exercise Clauses took:

James Madison's Proposed Amendment, June 8, 1789. "The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed."

Madison's Interpretation of His Proposed Amendment. "Congress should not establish a [national] religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience."

House Committee Report, Proposed Amendment, July 28, 1789. "No religion shall be established by law, nor shall the equal rights of conscience be infringed."

Samuel Livermore's Substitute Amendment, August 15, 1789. "Congress shall make no laws touching religion or infringing the rights of conscience."

Amendment Approved by the House, August 24, 1789. "Congress shall make no law establishing religion or prohibiting the free exercise thereof, nor shall the rights of Conscience be infringed."

Amendment Approved by the Senate, September 9, 1789. "Congress shall make no law establishing articles of faith, or a mode of worship, or prohibiting the free exercise of religion."

Compromise Amendment Approved by Congress, September 25, 1789 (This is the version which was added to the Constitution in the First Amendment.). "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

From first proposal to final language to present-day interpretation, much has changed.

Article V of the US Constitution provides the amendment process: “The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”

Through our history, 33 amendments have been approved through the federal legislature: 27 have been ratified by the required number of States; two have died; the remaining four are on life support and will probably stay that way (although the Child Labor Amendment may someday be revived). Many dozens of amendments are proposed each year but never leave the Capitol Building.

So let’s presume that the liberals vote “their conscience” and muster 34 votes against the proposed Marriage amendment (the same “conscience,” btw, that supports the killing of babies-in-uteri and the indefinite prolonging of life for adults that murder; that dichotomy will forever confuse me). The next alternative is for the States to call a Convention.

FindLaw provides this discussion of the Convention method (the original text has footnotes; since I have drawn out a selected portion, I have included the full text of the footnotes in (italics surrounded by parentheses):

“Because it has never successfully been invoked, the convention method of amendment is surrounded by a lengthy list of questions. (The matter is treated comprehensively in C. Brickfield, Problems Relating to a Federal Constitutional Convention, 85th Congress, 1st sess. (Comm. Print; House Judiciary Committee) (1957). A thorough and critical study of activity under the petition method can be found in R. Caplan, Constitutional Brinksmanship--Amending the Constitution by National Convention (1988).)

When and how is a convention to be convened? Must the applications of the requisite number of States be identical or ask for substantially the same amendment or merely deal with the same subject matter? Must the requisite number of petitions be contemporaneous with each other, substantially contemporaneous, or strung out over several years? Could a convention be limited to consideration of the amendment or the subject matter which it is called to consider? These are only a few of the obvious questions and others lurk to be revealed on deeper consideration. (Ibid. See also Federal Constitutional Convention, Hearings before the Senate Judiciary Subcommittee on Separation of Powers, 90th Congress, 1st sess. (1967).)

This method has been close to utilization several times. Only one State was lacking when the Senate finally permitted passage of an amendment providing for the direct election of Senators. (C. Brickfield, Problems Relating to a Federal Constitutional Convention, 85th Congress, 1st sess. (Comm. Print; House Judiciary Committee) (1957), 7, 89.) Two States were lacking in a petition drive for a constitutional limitation on income tax rates. (Id., 8-9, 89.) The drive for an amendment to limit the Supreme Court's legislative apportionment decisions came within one State of the required number, and a proposal for a balanced budget amendment has been but two States short of the requisite number for some time. (R. Caplan, Constitutional Brinksmanship--Amending the Constitution by National Convention (1988), 73-78, 78-89. )”

It seems, then, that if Liberal Math dominates the day, our country will be faced with several new issues to be resolved. Clearly, the process will take a substantial amount of time and will be argued from trial through the USSC at every opportunity – both state-to-state and at the federal level.

The matter is one which should be decided upon its merits, not through procedural delays. Mr. Liberal Mathematician: Tear down that wall!!