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June 06, 2006

Grading the Amendment

If the proposed Constitutional amendment barring same-sex marriages were submitted on a law exam as an example of a model new amendment, how would it fare with the professor? Brooklyn Law School professor Jason Mazzone, who teaches Constitutional Law there, gives it the once over and concludes, among other things:

The amendment is obviously a rush job by a novice rather than a carefully drafted proposal by a seasoned constitutional lawyer.

Well, yeah. Here's the whole grading report, complete with grade. I wouldn't grade it so high, but then, I'm not one for grading on a curve.

Of course, in the real world, there's a good reason this particular amendment is sloppily constructed. It's not because the people who constructed it are morons (or at the very least, not just because), but because those who wrote it know it hasn't a chance at passing, so the rhetoric is pitched toward the floor stompers who want their pet cause to get a nice head pat, rather than toward the Constitution in which it has almost no chance in residing.

Also, yeah, I'm pretty much done with this topic for a while. Unless the amendment somehow passes. Then I'll be all, OMGWTF??!!?!??!?!?! Fortunately, I don't think I'll need to get real worked up about that.

Posted by john at June 6, 2006 01:41 PM

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Comments

Jonathan Arnold | June 6, 2006 02:08 PM

They were saying on an NPR report that it is a "good" issue for vacuous politicos like Bush - it makes a great rallying cry for those that believe in it, while it won't alienate those who otherwise support Bush and the group it will most piss off, don't like him anyway. Perfectly empty issue, a great symbol of our Furless Leader.

John Scalzi | June 6, 2006 02:09 PM

Note to Brian Greenberg: The moron reference there was put in specifically to get your goat. Don't take it too seriously.

Justfred | June 6, 2006 02:13 PM

Thing is, we should really be riled up, not about the issue itself, but about politicians wasting time on our dime, with legislation that has no chance of passing - such as this, or the national draft - just to make a political point. We pay these people. They spend our money like mad. Then they do things like this; or pass resolutions honoring sports teams or saying "we support the troops" when what they really should be doing is figuring out ways to get us out of the financial and international foul-ups they've gotten us into in the first place.

Rich | June 6, 2006 02:17 PM

Despite complaints of activist judges, i think that any US Constitutional amendment would, as Jason Mazzone commented, run afoul other pre-existing amendments. But, given that Bush and the Republicans generally, are experiencing spectacularly low public support, it must be time to curry to the ones who put them in power, regardless of the legality, or if appropriate, morality, of the proposed legislation.

Dave | June 6, 2006 02:36 PM

Thing is, we should really be riled up, not about the issue itself, but about politicians wasting time on our dime, with legislation that has no chance of passing - such as this, or the national draft - just to make a political point.

All else being equal, we're better off when legislative bodies are doing meaningless stuff, rather than creating legislation that actually produces meaningful change. Between malice, cupidity, cluelessness, and unintended consequences, the last thing anyone should want is an active legislature.

Then they do things like this; or pass resolutions honoring sports teams or saying "we support the troops" when what they really should be doing is figuring out ways to get us out of the financial and international foul-ups they've gotten us into in the first place

Except that legislators figuring out ways to get us out of problems is how a surprising number of those problems got started in the first place.

Getting back on topic, I feel certain that a law professor going over the text of the vast majority of the thousands of proposed constitutional amendments would find them overbroad and poorly written. Since about 1870 or so, the set of people who spend their time writing and backing constitutional amendments are rarely the sharpest tacks in the box, outside of a very few edge cases (women's sufferage, and, um, that's about it).

Dave | June 6, 2006 02:40 PM

Wow, sorry about that last post. It seems to have passed through some grammar-devouring wormhole on its way to the site. I blame Bush.

John H | June 6, 2006 02:55 PM

Dave:

So in your mind, a do-nothing congress is the best-case scenario - anything else will just make matters worse?

Dave | June 6, 2006 03:17 PM

So in your mind, a do-nothing congress is the best-case scenario - anything else will just make matters worse?

Not "do-nothing", but "do-vastly-less". Pretty much all of the valuable legislative action in my lifetime has involved rolling back previous legislative excesses, and I see no reason to believe that will change anytime soon. Call 'em into session for two months a year to pass the budget, and otherwise let 'em stay at home.

Haplo Peart | June 6, 2006 04:29 PM

Dave.

I can't agree with you more...we seem to pass more laws just so the politicians have something to do, or to appease special interests.

The first rule of law making ought to be that the question "what benefit will passing this law bring to the average citizen?" If the answer is "none", "little", or "it will effectively screw them" then the law doesn't need to exist.

That would toss this whole gay marriage debate, the DMCA and similar laws would never have gotten passed, etc.

CoolBlue | June 6, 2006 04:33 PM

John Scalzi

those who wrote it know it hasn't a chance at passing, so the rhetoric is pitched toward the floor stompers who want their pet cause to get a nice head pat

This seems true to me. Look at it this way, there are 11 states that have passed a DoMA. By pushing this through Congress, they get people on record as being for or against Gay Marriage. Look at all the Candidates that helps.

Then there are all those Congressional districts that would pass such a thing and it helps those candiates too.

There are two primary things that get someone elected: Organization and GOTV. This clearly is meant to Get Out The Vote of Social Conservatives and all those who believe marriage should be between a man and a woman.

It's a big sign: Free Red Meat.

Which is no different than when the Washington State Democratic Chairman Dwight Pelz told delegates

"George Bush and his corrupt Congress have attacked the basic foundations of our middle class — our employer-based health-care system, our pension system, Social Security and Medicare," Pelz said."

Or Congressman Conyers holds a "hearing" on the Downing Street Memo.

GOTV baby, GOTV.

Bill Marcy | June 6, 2006 04:59 PM

I wonder if anyone explained to this esteemed professor, that th eCOnstitution itself was written by a bunch of neophytes. I gather if they did, it might keep him up at night.

Bill Marcy | June 6, 2006 06:35 PM

Also, I think as citizens, we ought to insist that in order for a law to be passed, 50 or maybe a hundred old laws need to be struck down and removed from the books.

Seriously, I can't think of more than a page worth of laws that are useful to we citizens as a whole.

Brandon | June 6, 2006 06:56 PM

Bill Marcy
I wonder if anyone explained to this esteemed professor, that the Constitution itself was written by a bunch of neophytes.

Presumably, being a scholar of constitutional law, he knows who the framers were and is not bothered. For, while they were "neophytes" to the process, they were mostly elder statesmen and intellectuals who were following in the footsteps of a couple hundred years of democratic law and philosophy.

On the flip side, this admendment was written by bigots and thieves. There's no comparison, really. Getting it into the document would be a deep shame for our nation.

I can't think of more than a page worth of laws that are useful to we citizens as a whole.

I'd like to see this 1 page of laws. Go ahead, type it out, and I will talk about it with you. It shouldn't take so long, since it's only 1 page.

Seriously: even a decent set of traffic laws takes several pages. And please, for the love of God, don't use the words "privatize" and "roads" in the same sentence when you reply to this.

justfred
Despite complaints of activist judges, i think that any US Constitutional amendment would, as Jason Mazzone commented, run afoul other pre-existing amendments.

Prof Mazzone points out in the comments to that entry that admendments can't, by definition, be illegal. The Supreme Court has had absolutely no power in the past to review admendments for their "constitutionality" and I (and he) seriously doubt that such a thing would happen in the future.

More likely, when the 14th and theoretical 28th admendments butted heads, the courts would treat the 28th as a partial repeal of the 14th, though such a thing is not stated within the text of the amendment (as that would only make it more reprehensible to the general public). But really, such a thing is unthinkable - admendments are all made to work harmoniously, because there really are enough people who care enough about the Constitution to prevent this kind of stupidity in the admendment process, and that is true for both sides of the aisle, I believe. Maybe I'm a stupid optimist, but I think Constitution trumps partisanship for all but the most far gone of our politicians.

Bill Marcy | June 6, 2006 09:28 PM

We seem to throw the 'Bigot' word around alot here. Catch-alls are usually wrongly used. Sorta like when the left uses chimpy, or calls anyone who they disagree with 'morons'. No?

John Scalzi | June 6, 2006 09:38 PM

"We seem to throw the 'Bigot' word around alot here. Catch-alls are usually wrongly used."

(rolls eyes)

Calling people who want to deprive other people of their rights "bigots" is rather a precise use of the term, Bill.

Jesus. What the hell is wrong with people? "Oh, no! We might offend the bigots! They might not like that!"

Good. I hope they hate it. I hope that they're so ashamed about being called out for what they are that they run and hide and keep their goddamned hate to themselves.

"Sorta like when the left uses chimpy, or calls anyone who they disagree with 'morons'. No?"

Uh-huh. Because the right is such a model of rhetorical decorum.

For the record, I don't call people "morons" when I disagree with them. I call them "morons" when they do stupid things for unfathomable reasons. There's a difference.

Hugh Casey | June 6, 2006 11:26 PM

John;

On a completely DIFFERENT topic...

Can you email to me (hughcasey (at) yahoo.com) an email address that we can use to send you an invitation to Philcon (www.philcon.org) in November? We'd love to see you there, if you can make it.

Hugh Casey
Philcon Programming Committee

John Scalzi | June 6, 2006 11:45 PM

Hugh:

john@scalzi.com. As I like to say, if you know my name, you know my e-mail.

mythago | June 7, 2006 12:42 AM

Seriously, I can't think of more than a page worth of laws that are useful to we citizens as a whole.

The Bill of Rights takes up a page. What, you were thinking maybe we could get rid of those useless, paper-wasting laws prohibiting murder?

On this amendment--they couldn't even get an amendment prohibiting flag-burning passed, and this one is way, way less popular.

tim in tampa | June 7, 2006 12:46 AM

I'm curious to know what he'd think of the flag-burning amendment. Many a great debate took place in my Muskingum College classroom, as I prodded my students to come up with a definition of the "flag of the United States of America." (Since no reference to the flag is made in the Constitution, it would have to be defined by the amendment itself to be C-valid, and the flag has changed so many times that the description, in order to stay up-to-date, would be unwieldy. Of course, the one being voted on this week simply bans "desecration" which is phenomenally vague, as well as the aforementioned "flag of the United States" issue.

Timothy McClanahan | June 7, 2006 01:18 AM

C'mon, John, of COURSE they're going to do the anti-gay handwaving...it's not like they have anything ELSE they can talk about without getting their asses handed to them by both sides, ya know? It's not like they're in favour of smaller government, fiscal responsibility, or states rights, ya dig? There's only two things left on the platform - pro-bigotry and anti-abortion. Leave them those crumbs, okay? Yeesh.

John Scalzi | June 7, 2006 01:34 AM

I know, I know. Mean of me.

Steven Scougall | June 7, 2006 02:07 AM

Vaguely on topic: I recall that our esteemed leaders down here in Australia were, at some point in the not too distant past, talking about this sort of thing. There were going to be laws introduced saying that marriage was defined as being between a man and a woman, but they didn't stop there, oh no, they threw in definitions of 'man' and 'woman' as well. Just to be sure.

Unfortunately I can't remember whatever happened to it. I have a horrible suspicion it was sneaked into law, as our government has a tendency to sometimes do.

On a completely different topic: After quite some time of not seeing OMW in any the bookshops down here (here being Brisbane, Australia), I finally saw (and bought (and read)) it. w00t, excellent, and so on. It was very enjoyable - thank you.

Now, to hunt down Ghost Brigades...

Jim | June 7, 2006 10:07 AM

I agree with you about this amendment, however the other side has one vaild point. It is in the best interest of the state to have it's citizens reproduce. As a corollary it is also important that these children grow up to be productive citizens. A lot of people feel the legal atvantages of a "marriage" should be reserved that.

There are countless examples of childless couples etc. What needs to happen is for us to drag the agument away from hate and towards something productive. Mabey if we add something about must have, or adopt, and least 1 child within 5 years of marriage in order to qualify for the legal atvantages.

John Scalzi | June 7, 2006 10:22 AM

Inasmuch as many of the people who want to ban same-sex marriage are apopleptic at the idea that gays and lesbians might raise children, I wouldn't see that amendment to this amendment getting any sort of traction. This aside from the rather questionable requirement of forcing people to reproduce at all.

Nicole J. LeBoeuf-Little | June 7, 2006 11:24 AM

I insist that my husband be considered my husband regardless of whether we never have children. My husband, being no Henry VIII, would also not be pleased at the prospect of our marriage being annulled due to our choosing not to reproduce. I suspect we are not the only child-declining* couple to feel this way. So... good luck having that sort of amendment passed.

My goodness, why are so many people so het up about how other people define their marriages? The possessiveness over the term is just childish. "You can't call yourself married! You have no children!" "You aren't a heterosexual couple!" "You didn't get married in a church so you're only allowed to call it a civil union!" It's almost as bad as a forum full of writers. "No! You cannot call yourself an author! YOU aren't making $.5/word!" "Oh yeah? Well YOU don't put 'author' down as your career on your tax return!" "Oh yeah? Well YOU..."

*"childless" sounds like a lack; "childfree" sounds like someone who just had the Orkin man over to rid the house of pests. I need a good, non-biased word to describe "choosing not to have children but having nothing against children personally."

Jim | June 7, 2006 12:39 PM

No, you missed my point. I'd don't really care about the social definition of marriage. The state has only one valid issue in the whole mess, and that is in promoting a future generation of children. In my opnion the whole debate should revolve arond that issue. Any benefits, priviledged treatment etc. should be based around that fact. Anything else is a social/religeous matter the state should not get involved in.

Maggie | June 7, 2006 08:48 PM

Nicole,

I prefer the terms "enkidded" for the parents and "unenkidded" for the non. Alternatively, for the geeks among us, I like "default state" for the unenkidded.

Josh Jasper | June 7, 2006 11:36 PM

If promoting the welfare of children was that important, more funding for health care for children who's parents are not able to afford it makes an imperial standard assload more sense than denying same sex couples the right to legaly marry.

But, Jim, if you'd like to talk children, how about same sex couples with children? Do they count? Because Bush thinks they don't, as does everyone else who argues against gay marriage.

Jim | June 8, 2006 06:33 AM

You will note I said have or adopt in the first response.

Nicole J. LeBoeuf-Little | June 8, 2006 12:25 PM

"Unenkidded." I like that. It leans a little close to "unencumbered," which suffers from the same problems as "childfree," but only people with poetic meter on the brain will notice that.

I am not convinced that the government's sole concern in marriage is with reproduction, but that is probably not a discussion I can have intelligently. I've spent most of my life not comprehending the economy, after all. Mainly I get the impression that the folks upthread talking about married couples buying real estate are on to something. But again, if I say much more I'll end up chewing on my foot, so I'll leave it to someone whose toes do not wander into his/her mouth so readily.

Smurf | June 9, 2006 07:59 AM

Prancing into the minefield...

If there are kids in the house, they should have healthcare... even if there are two Dads, or if Mommy has sex with a trombone or something.

mythago | June 9, 2006 11:27 AM

In my opnion the whole debate should revolve arond that issue.

That's fine, because then the people opposing same-sex marriage lose.

See, if the government is trying to say that marriage = rearing children, then you'd expect that purpose to be reflected in all its laws. You can't simply dredge up the kiddies when you want to keep the queers from agitating.

The problem is that heterosexuals have mostly stripped that all-important purpose out of the marriage laws. We have no problem letting the elderly marry, or in recognizing a marriage as legally valid if one person in it turns out to be infertile. States have gotten rid of laws that require people seeking a marriage license to affirm they are 'neither infirm nor impotent'.

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