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Law of the West

John Scorsine
Peyton, Colo.

I try to keep this column tied in some way to current events and most weeks, even if the local and regionally news are quiet, CNN and FOX come through. There will often be some story that has a local or personal connection. This week is no exception. The President and folks in Congress, knowing full well that they don’t have the votes necessary, have decided to whip up controversy and attempt to propose an amendment to the Constitution. This amendment will ban marriages between adults of the same gender.

Now, Vice President Cheney and I certainly don’t have much in common, though we both have come to call Wyoming home. However, on this issue we do have a common frame of reference. After my recent marriage, I gained not only a wonderful spouse but two, great, new daughters. One of my new daughters has revealed that she is a lesbian. During the 2004 campaign, Vice President Cheney, himself the father of a lesbian daughter, stunned the political community by voicing his opposition to a constitutional amendment banning gay marriage. Hence, my former congressman and I have yet another thing in common … for the record that would make exactly three things we have in common.

Needless to say, the rhetoric about gay marriage bans and the like have peaked my interest. But, as a lawyer, what I did as soon as the President announced his support was review just what it takes to amend the United States Constitution.

Many commentators tell us the reason that the Constitution has endured is because it is so difficult to amend. Yet, it is broadly written so that it is flexible enough to accept the changes of society and the Nation. In fact, there are only 27 amendments. The first 10 are commonly known as the Bill of Rights, and their adoption was fully anticipated when the Constitution was adopted. These 10 Amendments secured our basic individual human rights. The Bill of Rights was seen by the Founding Fathers not as incidents of citizenship, but rather as a guarantee of basic rights possessed by all people.

After the first 10 Amendments, the next 17 dealt with both individual rights and the operation of government. The only time an Amendment injected government into the private lives of our citizens was in 1919 with Prohibition. That ill-fated social experiment in legislating morality was repealed in 1933.

There are two ways to amend the United States Constitution. The first is through state ratification and the second is through a Constitutional Convention. There has never been a Constitutional Convention since the adoption of the Constitution.

Typically, ratification requires a bill to pass both the House and the Senate, by a two-thirds majority. Once the bill has passed both houses, it goes on to the states. This is the route taken by all amendments to date. Three fourths of the States must ratify an amendment. Congress will normally put a time limit for the bill to be approved as an amendment by the States. This is a result of the 27th Amendment, originally proposed by Congress in 1789 and ratified by the states, and this is no typo, in 1992!

The second method is for a Constitutional Convention to be called by two-thirds of the legislatures of the States, and for that Convention to propose one or more amendments. These amendments are then sent to the states to be approved by three-fourths of the legislatures or state conventions. This route has never been used. It is interesting to note that the President does not have a role in either amendment process. He cannot veto a proposed amendment.

As I look at the 26 active amendments to the Constitution, I am struck by a single, common denominator. In the case of each amendment concerning the rights of individuals, the change has been written to limit governmental power and interference in our lives. The changes to date have always ensured greater personal rights and liberties. Never has there been an amendment that would be discriminatory or more restrictive of our personal rights and liberties. No previous amendments are written to exclude persons from sharing the benefits of our Nation and the protection of our governmental institutions. Perhaps, before our legislatures and the special interest groups rush to change the most treasured document in the Free World, they should stand back and admire its deceptive simplicity, its true complexity, and the over-arching theme of the Constitution ” justice, liberty and freedom for all.

The information provided in this column is based upon general principles of law and should not be relied upon in any manner. It is not the intent of this column, its author, publisher or the Fence Post to provide legal advice to any person. You should address specific legal questions to your family lawyer. In Wyoming, the State Bar can refer you to competent lawyers in your community by calling (307) 634-7823. In Colorado, call the Metropolitan Lawyer Referral Service at (303) 831-8000. Readers in Nebraska can receive referrals from the State Bar Association by calling 1-800-742-3005.


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