Tag Archives: bill of rights

Republican wins could lead to amending U.S. Constitution

The November election put Republicans in full control of a record number of state legislatures around the country, a level of power that gives the party an unprecedented opportunity: change the U.S. Constitution.

Republicans already control Congress, the White House and more governors’ offices than they have in nearly a century. But it’s the state legislatures that could produce lasting change.

The GOP now holds numerical majorities in 33 legislatures, one shy of the two-thirds required to initiate a convention on constitutional amendments. There is no credible talk of using that power for amendments on hot-button social issues, such as banning abortion or gay marriage. But conservatives have a list of bread-and-butter governing issues they would like to see enshrined in the Constitution.

One, to require a balanced federal budget, is already approaching the level of support that would trigger a convention. Beyond that, a major state-level push is planned during 2017 for a constitutional convention that could also consider amendments to impose term limits on members of Congress and rein in various federal powers.

President-elect Donald Trump has pledged support for an amendment on congressional term limits.

“The possibility of constitutional change is in the air,” said law professor Jeffrey Rosen, president and CEO of the National Constitution Center in Philadelphia, a nonprofit museum that is hosting academic debates and symposiums about the efforts to amend the Constitution.

The U.S. Constitution has been amended 27 times since it was ratified in 1788, and its Article V spells out two ways to propose amendments. By a two-thirds vote of each chamber, the U.S. House and Senate can refer an amendment to the states. Or two-thirds of the state legislatures can request that Congress call a convention of the states.

Both scenarios require three-fourths of the states — or 38 — to ratify an amendment before it takes effect.

If the supporters of a balanced budget amendment succeed, it would be the first time in the nation’s history that states initiated the process. That scenario has become more likely as a result of the November election.

It takes 34 states to trigger a convention for constitutional amendments, meaning a unified Republican push would need the help of only a few Democrats in a single state to reach the mark.

“The overwhelming success of one political party at the state level is something of real constitutional significance,” said Akhil Reed Amar, a constitutional law professor at Yale University.

Every state except Vermont has some sort of balanced budget requirement, according to the National Conference of State Legislatures. The U.S. government does not, but not everyone agrees that’s a problem. During recessions, for example, federal government spending can help drive the economy even if it means spending at a deficit.

Twenty-eight state legislatures already have approved measures calling for a convention to propose a federal balanced budget requirement, although they use a variety of terms that could raise legal questions about whether they all count toward the threshold.

Organizers at the nonprofit Balanced Budget Amendment Task Force have lined up sponsors in nine additional Republican-led legislatures — Arizona, Idaho, Kentucky, Minnesota, Montana, South Carolina, Virginia, Wisconsin and Wyoming — with the goal of reaching the two-thirds threshold in 2017.

But Republican control is no guarantee of success.

A Wyoming measure calling for a convention on a balanced budget amendment was shelved in 2015 after the state Senate altered it to make it contingent on assurances that Wyoming would not see a reduction in federal revenue.

Montana’s Republican-led House overwhelmingly defeated a resolution calling for a convention on a balanced budget amendment when it last met in 2015. Opponents expressed fears of a “runaway convention” during which delegates might propose all types of possible amendments.

Similar fears have thwarted past attempts at passing a balanced budget amendment. The movement peaked at 32 states when Missouri passed a resolution calling for a convention in 1983, then dipped to about half that as numerous states rescinded their resolutions. The tally began growing again after Republicans swept into control of many capitols in 2010.

The possibility of a convention dominated by delegates from a single party is “alarming,” said Carolyn Fiddler, a spokeswoman for the national Democratic Legislative Campaign Committee.

“There are no rules. They can just throw out the whole Constitution if they want to,” Fiddler said. “It’s the wildest of Wild West situations.”

Supporters of a balanced budget amendment hope to allay such fears by convening this coming summer in Nashville, Tennessee, to propose rules and procedures for a future convention on constitutional amendments. They contend a convention is unlikely to veer off into contentious issues such as abortion and gun rights because amendments ultimately will need bipartisan appeal to win ratification from 38 states.

The mere possibility of a state-initiated convention has been enough to prompt Congress to action in the past. With states just shy of the two-thirds mark in 1912, Congress instead wrote its own amendment requiring senators to be elected by a vote of the people rather than through state legislatures. The states then ratified the amendment.

But Congress has repeatedly fallen short of the two-thirds vote needed to refer a balanced budget amendment to the states. The last time both chambers tried was in 2011.

During the past three years, eight states have passed resolutions calling for a convention that would go beyond a balanced budget amendment to include other fiscal restraints, term limits for Congress and federal officials, and unspecified restrictions on federal power. Though still far from the two-thirds threshold, supporters of those causes believe the Republican rise to power could help their movement grow rapidly.

“With the election and things that have happened, it provides really a once-in-a-lifetime opportunity to restore critical structural checks in our constitutional system,” said Utah state Rep. Ken Ivory, a Republican attorney.

Ivory was elected in September as the presiding officer of a simulated convention of the states designed to demonstrate that the method of proposing constitutional amendments actually can work. Among those present at the event was law professor Randy Barnett, director of the Center for the Constitution at Georgetown University.

“Amending the Constitution is always a longshot, no matter how you go about it,” Barnett said. But if 34 states — including 33 Republican ones — call for such a convention, “it would be very difficult for the Congress to stop that.”

Judge dismisses suit over Oklahoma Ten Commandments monument

A federal judge earlier this week dismissed a lawsuit challenging the constitutionality of a privately funded Ten Commandments monument on the grounds of the Oklahoma Capitol.

The lawsuit filed by a New Jersey-based nonprofit group, American Atheists Inc., and two of its members in January 2014 alleged the monument violated the First Amendment’s prohibition of government sanctioning of a specific religion, as well as other constitutional rights. U.S. District Judge Robin Cauthron ruled that the group lacked legal standing to file the lawsuit.

An attorney for the group, Eric O. Husby of Tampa, Florida, said he disagrees with the ruling but that no decision has been made to appeal.

Cauthron’s decision was hailed by Oklahoma Attorney General Scott Pruitt, whose office defended the monument.

“The historical relevance of the Ten Commandments and the role it played in the founding of our nation cannot be disputed,” Pruitt said in a statement.

It’s the second time that Pruitt’s office has successfully defended the monument against constitutional challenges. In September, Oklahoma County District Judge Thomas Prince ruled that the monument does not violate the state constitution and can remain. The ruling has been appealed to the Oklahoma Supreme Court.

The original 6-foot-tall granite monument was erected in 2012 after a bill authorizing it was passed by the Republican-controlled Legislature. That monument was destroyed in October when a car drove across the Capitol lawn and crashed into it. A replica was installed in January.

Since the monument’s placement on the Capitol grounds, other groups have asked to erect their own monuments, including a satanic group, a Hindu leader in Nevada, an animal rights group and the satirical Church of the Flying Spaghetti Monster.

Editorial: The realities of free speech

The horrific massacre of journalists in Paris on Jan. 7 demonstrates what happens when the freedoms of speech and religion collide with extremism. The French collision involved Muslim radicals, but, here in the United States, we have a growing movement of right-wing extremists who need to understand the First Amendment guarantees provided by the Constitution’s Bill of Rights. 

The First Amendment does not guarantee unfettered rights to either the freedom of speech or religion. It simply prohibits the government from interfering with the lawful exercise of those freedoms.

Over the holidays, we ran an outside writer’s opinion piece at www.wisconsingazette.com that called for overturning the Second Amendment. Almost immediately, we received hundreds of shocking, profanity-laced comments threatening violence against the author and us. Many commenters attempted to publish the author’s address and phone number. Some called for his murder.

When we deleted dozens of those comments, we were accused of violating the responders’ rights to free speech. Nowhere does the Constitution say that any publication is obligated to publish content that it finds offensive, and a government that forced us to do so would be in violation of our freedom of the press. 

In this issue of WiG, we have a story (page 12) about an anti-gay student at Marquette University who claims that his free speech was violated when the teaching assistant of an ethics class refused his request to initiate a class discussion about the immorality of same-sex marriage. 

The First Amendment does not permit students to hijack classrooms and turn them into forums for their controversial religious views. Just because the government does not prevent individuals from speaking their thoughts does not mean that everyone else has to publish them, give them a soapbox or even listen to them.

Similarly, the First Amendment’s guarantee of free religion does not mean that everyone is obligated to bow to everyone else’s religious views. In fact, it means the opposite.

As marriage equality gradually becomes the law of the land, we see county clerks refusing to issue marriage licenses to same-sex couples — all in the name of “freedom of religion.”

But in conferring on individuals the right to practice any religion they choose, the Constitution does not say they can silence or discriminate against people who hold different beliefs. In fact, it would be impossible to guarantee religious freedom if this were the case, because the dominant religion could seek to prevent citizens from practicing other faiths. 

We find it absurd that prohibiting people from engaging in same-sex relationships is the underpinning of a major spiritual belief system. But for a large portion of fundamentalist Christians, condemning other people’s sexual practices is at the core of their faith, and we believe they are entitled by the Constitution to hold that view. They are not entitled, however, to discriminate against fellow citizens whose religions teach otherwise or against people who practice no religion and don’t care how LGBT people conduct their personal lives. 

The jihadists who gunned down 12 people at the offices of the newspaper Charlie Hebdo in Paris believed that they were exercising their religion. The paper had repeatedly mocked Islam, and fundamentalist Muslims hold that blasphemy is punishable by death — just as the Roman Catholic Church held for centuries. America’s fundamentalist Christians, some of whom have advocated successfully for making homosexuality a capital crime in other countries, should take a long look in the mirror and think about this incident. So should gun activists who call for Second Amendment critics to be put to death simply for speaking their minds.

While Fox News is using the massacre in France to call for a denunciation of Islam, we are more concerned about the followers of Fox News. They must learn where their rights end and the rights of others begin.