Using amendments to tear up the Constitution — or not
Our constitutions in the US, both State and Federal, have a built in facility for amendments. This means we can change our constitutions, but it also means we can destroy ourselves. Constitutions aren’t about winning arguments or culture wars. Constitutions are foundational documents that glue nations and states together. Our democracy lets you ignore that fact, but you do so at your own peril.
Earlier in the year the Republican dominated legislature in MN plunked two proposed constitutional amendments on the MN ballot for November. One is a marriage amendment that prevents anyone other than one man and one woman from having a legally recognized marriage. The other requires voters show a certified photo ID at the polls on Election Day in order to cast a ballot that will be counted on Election Day.
Neither of these amendments belongs on the ballot or in the MN constitution. Aside from the lack of merit either amendment can muster, they are both divisive and polarizing initiatives that violate the very principles that constitutions are based upon. Regardless how you or I might personally feel about either one of these amendments neither you nor I represent an overwhelming majority. The polls show support for either one of these amendment running between 40% -60%. A clear majority would be 75% or greater. However in theory 50% plus one vote can change the constitution.
The problem with changing a constitution with one vote or even 1% of the vote is that constitutions are supposed to be inherently unifying documents that pull states and nations together. Almost by definition no proposed amendment should be controversial. Constitutions are supposed to represent basic principles that vast majority of citizens will support, defend, or even fight and die for. If you start adding controversial amendments that divide rather than unify, you undermine the whole concept of a constitution. Divisive amendments turn constitutions into weapons rather than protections, they become a cause of disintegration rather than integration, weapons against some minority rather than a shield against the majority or the state. The last time we had a constitution like that we almost died as a nation in a civil war.
The problem with the marriage amendment is that it seeks to build discrimination and intolerance into the constitution. The Marriage amendment is institutionalized bigotry because no matter how you personally feel about gay marriage, this amendment seeks to protect a group that is not being discriminated against (everyone in the state in who is not gay) from a minority that represents no threat. This turns the whole idea of a democratic constitution on its head. This amendment asks us to believe that somehow the majority of people in the state are suffering such crushing oppression at the hands of gay and lesbians that we need constitutional protection. It also elevates an entirely personal matter (who you and I marry) to a constitutional level and converts this personal choice into a government concern. This is not how you glue a society together, this is how you create an oppressive government.
The photo ID amendment will restrict and prevent thousands of legitimate votes in order to prevent a non-existent problem. Thousands of senior, students, and people living in various shelters will not be allowed to cast a vote that will get counted on Election Day. They will get new “provisional” ballots many of which will never get counted despite having been cast by perfectly legitimate voters. No one is saying the current system is flawless but the fact is that the only possible type of fraud that a photo could prevent is voter impersonation, and there is not one documented case of voter impersonation in the state of Minnesota. Of the ten cases of voter fraud being investigated in MN since 2008 (yes ten cases out of more than 4 million votes cast) eight of them were felons who voted illegally.
Listen: in 2009 the MN legislature passed (on an overwhelmingly bi-partisan vote) a law that would have required that a variety of state agencies share data with the Secretary of State’s office. That data would have given the Secretary of State the ability to flag felons and others illegal voters during the registration process and prevent them from voting. Had that law gone into effect we would have had zero felons casting votes in 2010 and 2012. Governor Pawlenty vetoed that law. Why? If Republicans are really that worried about fraud why not eliminate 80% of it? Why veto an uncontroversial law that would prevent 80% of the fraud and submit a controversial amendment that will prevent 0% of the fraud? Obviously this isn’t about fraud.
The Photo ID amendment does a couple things that the law Pawlenty vetoed didn’t do. For one thing instead of targeting illegal voters it creates obstacles for legal voters. Even in some cases where a voter is legal and registered with a valid photo ID they will be forced to cast a provisional ballot instead of a regular ballot. If you haven’t registered 30 days prior to the election your valid photo ID will not get your voted counted on Election Day. And no one has any idea what such a voter has to do go get their vote counted or when or if it will be counted.
The other difference between the law that Pawlenty vetoed and the photo ID amendment is cost. The photo ID requirement will cost upwards of $50 million for state and county officials, and will potentially cost millions for seniors and others. While the IDs themselves may be provided for free in some cases, the documents and costs associated with obtaining the necessary documents will have to be paid by the individual voter. Those costs range from $25 – $65+. In case you’re wondering, we have over 200,000 people in the state who currently lack the required photo ID.
The photo ID amendment is just a back door way of purging voter rolls and creating obstacles for legitimate voters. The amendment completely changes your relationship with the State. Right now the government is required to count your vote. The photo ID requirement creates the burden for you, you will have to make the government count your vote. In a very basic way photo ID takes your right to vote away and replaces it with government issued permission in the form of a government issued ID. Does that sound like something that belongs in a constitution that’s supposed to create common ground for us all?
If we had a constitutional threshold of say 70% for amendment passage in MN; controversial and corrosive amendments like these would have no chance and would probably not get on a ballot in the first place. Of course that would mean that an amendment that I like- the Legacy Amendment which provides funding for the arts and water conservation, would not have passed either. So be it.
Since we don’t have a high threshold it’s up to you dear voter to decide. Regardless of how you personally feel about gay marriage or photo ID look at these amendments. If either one were a great idea for the constitution they wouldn’t be facing the prospect of squeaking by with less than 10% of the vote. And remember, amendments are not normal legislation, once you got em you’re stuck with them. Gay marriage is already illegal in MN, what’s the point of an amendment? If you think photo IDs are good idea fine, but this amendment isn’t what you’re looking for. Do you want to create a constitution that becomes a weapon of discrimination and an obstacle to voters, or do want our constitution be a unifying document that the vast majority of citizens can support and defend in good conscience? Is this going to be the year we start tearing up our constitution with controversial and toxic amendments? Or this the year we’ll vote “No” and keep a constitution we can all live with?
This post was written by Paul Udstrand and originally published on Thoughtful Bastards.
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Comments (8)
Old arguments
Your opinion is in the minority. It's amazing how those you belong to a party named after democracy are the least supportive of the idea.
Doubtful Premise
Would the overwhelming majority of Americans supported allowing the free practice of Catholicism in 1783? I doubt it. Likewise giving the vote and other rights to African-Americans after the civil war. These were all political decisions. They were not reflections of popular will, but of compromises between various interest groups. They reflected popular will only to the extent the relative political power of interest groups reflected popular will.
That doesn't mean either of these measures belong in the state constitution. They don't. One, gay marriage, is already covered by statute. The other, preventing people from voting without a photo id, was passed as legislation. It is only on the ballot because the governor vetoed that legislation. The amendment process is being misused to bypass the normal constitutional process for settling political differences.
If these pass, we will see future ballots cluttered with legislation masquerading as constitutional amendments whenever the governor and legislature can't agree. If we are going to have legislation by popular vote, then we ought to change the constitution to give citizens the means to initiate that legislation. But over 30 years ago Minnesota voters explicitly rejected an amendment to do that.
Just a quick technical note from the author
Ross,
My argument is both qualitative and quantitative. It should be noted that the US Constitution in fact sets a much higher bar for amendments than does the MN constitution. The US constitution require a 2/3rds majority in both the house and senate, and then goes on to require ratification by three fourths of the states. This is not simply a political decision. The MN constitution only requires simple majorities. Whatever US amendments you may be referring did in fact have to meet a much higher standard than the two ballots here will have to meet.
Super-majority
"The MN constitution only requires simple majorities."
That isn't really accurate. Amendments require a majority of those voting to vote yes. Not voting on the amendment has the same impact on the result as voting no.
"Whatever US amendments you may be referring did in fact have to meet a much higher standard than the two ballots here will have to meet."
I don't see how that is relevant to your argument. Despite the higher bar, those amendments were added even though they lacked anything like a consensus among the population. The original bill of rights were amendments largely made as concessions to protect minority points of view.
The republic and minority groups
Others know more about this than I do, but I want to put out there that modern Constitutional republics (like the US) explicitly seek to protect minority groups from the "tyranny of the majority." In the case of these amendments the GLBT community and non-photo ID holders are minority groups. Paul's piece seems to be suggesting that amendments passing by 50% + one vote enact the kind of tyranny that thinkers like Madison and JS Mill worried about. Even looking at it from a states' rights point of view (in which the state makes its own laws in order to avoid being tyrannized by the federal legislation), I cannot see how these amendments can even be discussed in a republican (note the lower-case "r") form of government.
In other words, it's ironic that a Republican legislature put forward these un-republican forms of legislation by amendment. A simple majority gets its way indeed.
One of the few valid roles of government
is to protect your constitutional rights. Protecting your vote against being canceled out by a fraudulent one is therefore a valid role of government.
And it's impossible to validate the voter's legal right to vote unless the government requires that the person attempting to vote identifies himself as a legal voter.
Another technical note from the author
A simple majority for any "yes" or "no" ballot question is 50%+1 of the votes cast. If proponents of an amendment want it to pass, at least 50% +1 of the votes cast need to be "yes" votes, hence a simple majority. A simple majority needs to affirm the proposition in order for it to become law.
My article is NOT about the history of the Constitution, it's about the nature of the constitution and idea of a constitution. All we will conclude from any study of constitutional history is that divisive and controversial constitutions create more problems than they solve, and that's exactly my point.
If you want to look at the history of civil rights and civil rights amendments by all means I encourage you do so. However what you find in very general terms is that the constitution that protected the majority from the minority led to the Civil War. The pre- Civil War constitution sanctioned division and oppression. As Carter points out post Civil War amendments and modern constitutions trend towards protecting minorities from majorities. They expand civil rights and prohibit restrictions. That trend has given us a less violent and more stable nation. We still have the occasional riot but nothing like what we saw back in the 60s, or 30s, or around the turn of the century, not to mention the Civil War itself. The proposed marriage and photo ID amendments are contrary to that trend, they restrict and oppress rather than expand and protect.
The Tester Fallacies
Dennis Tester Provides a very concise version of the Republican nullification argument regarding photo ID at the polls:
“One of the few valid roles of government is to protect your constitutional rights. Protecting your vote against being canceled out by a fraudulent one is therefore a valid role of government.
And it's impossible to validate the voter's legal right to vote unless the government requires that the person attempting to vote identifies himself as a legal voter.”
The idea is that legitimate votes are nullified by illegitimate or illegal votes and a photo ID is necessary to prevent that nullification.
Dennis’s nullification argument is based on no fewer than 4 basic fallacies.
We live in a nation with over 300 million fellow citizens. If Dennis’s one vote were the only constitutional right the government is charged with protecting he might have a point. Of course the reality is that protecting constitutional rights in a nation with more than two people requires that rights be balanced as best as possible. The government is also responsible for protecting the votes of all the voters in the nation. Any policy that denies a ballot to any legal citizen of voting age simply because they don’t have a photo ID nullifies voters. The government is also obligated to protect those voters Dennis would disenfranchise.
Photo ID not necessary for voter identification. We currently have an extensive registration process that reliably identifies nearly every voter. There have been ZERO cases of voter impersonation in MN. Photo IDs do not guarantee voter eligibility. Almost every felon that votes illegally in an election has a perfectly valid photo ID. Identity is not the issue, eligibility is the issue, and that is NOT determined by mere identification.
The notion that Dennis’s vote it being nullified by illegal votes is based on several statistical fallacies. For one thing it assumes that illegal votes carry more weight than legal votes, so 50 illegal votes out of 2 million can somehow nullify an entire election. It also assumes that there’s a one to one relationship between every illegal vote and every legal vote. So Dennis’s vote isn’t being nullified by my legal vote, it can only be nullified by someone’s illegal vote. Again, this calculation assigns more weight to illegal votes for no logical reason.
Finally the notion that illegal votes nullify Dennis’s vote is based on the assumption that EVERY illegal vote is identical, and the opposite of Dennis’s. There is no evidence to support this assumption, in fact we know that one of the felons who cast an illegal vote left a message for his parole officer that he was off to vote for McCain and Palin (Dennis votes Republican). Even illegal ballots are secret ballots so we don’t know who these people vote for. The assumption that they all vote the same, and that they all vote for Democrats, is based on Republican stereotypes not evidence or data. Another example is the Republican Secretary of State for Indiana, Charlie White. White was convicted of six felony counts of voter fraud. It’s unlikely that Mr. White voted illegally for Democrats. In fact one can assume that illegal votes have the same distribution as legal votes, therefore they just add to the vote totals rather than cancel out other votes. Essentially the nullification argument is statistically incoherent.