Can We Please Stop Talking About Amendments?

don quixote-illustration.jpg (540×365)

Recently, there was some dust up over how Ted Cruz would work to overturn the Obergfell same sex marriage decision and what Marco Rubio would do.  This reminds me of the same “controversy” over the Ted Cruz commercial that attacked Rubio on funding for Planned Parenthood.  After that commercial was aired, National Right to Life corrected the record stating that Rubio had voted to defund Planned Parenthood two years before Cruz was even in the Senate.  The basis of that commercial was that Rubio did not support the effort by Cruz to defund Planned Parenthood through an amendment to a spending bill.

As for that tactic, it would have been interesting for the Congress to send that bill with the Cruz amendment to the President’s desk and force Obama to veto the bill and justify the veto.  There is only one problem with that: reality.  The Republican Party does not have a veto-proof majority in the Senate, nor a filibuster-proof majority.  So let’s assume the Cruz strategy worked and they somehow found five Democrats to go along, break the filibuster and pass the spending bill with the Planned Parenthood amendment.  And Obama vetoes the bill.  Perhaps (and it is a big perhaps) the veto can be overrode in the House, but not the Senate.  So we are left back at square one after some heartfelt and sincere speeches on the floor of the Senate, but little else.

Furthermore, most pro-life organizations were on record against this tactic and said so at the time.  That is the reality of the situation.

As for the Cruz suggestion that Obergfell can be undone through a Constitutional amendment, it is another pie-in-the-sky solution to the problem.  Admittedly, it would restore the task of defining marriage to the states where it rightfully belongs.  And I am a firm believer that history clearly indicates that task belongs to the states.  But, one needs to look at the history of amendments and the tactic is not one of success.  This very subject could not make it through the Senate in 2002, 2003, 2004, 2005-2006, 2008, and 2013.  Perhaps the best opportunity was in 2005 when the GOP had a 55-seat majority.  Even then, it failed a cloture motion.  It failed to gain the two-thirds majority in the House.  Although a great idea, it is not going to happen.  Period.

Ted Cruz sometimes lives in a conservative Utopia where his preferred method or tactic to achieve a conservative goal is, in his mind, the only method or tactic.  But, in today’s politically polarized world, that Utopia must suddenly come up against reality.  And reality dictates that Cruz’ proposed amendment- although well-meaning and sincere- will be doomed to failure.  There will be soaring speeches and little else left at the end of the day except expended political capital.

I like Ted Cruz…I honestly do.  I believe he would make a great President and would be one true to the Constitution.  But, sometimes he also reminds me of Don Quixote attacking windmills.   It is great to support one’s principles, but there is a realistic and a not-so-realistic way to bring those principles to fruition.   Rubio’s approach, although not bringing about the instant gratification of an unrealistic Constitutional amendment, is the more realistic solution.

There are numerous cases where the Supreme Court has overturned previous decisions.  One has to get beyond the concept of stare decisis, but sometimes that is actually an easier task than the amendment process.  There are certainly cases where the amendment process moved more quickly to overturn a Supreme Court Decision.  Three examples are Chisholm vs. Georgia which resulted in the 11th amendment two years later, Oregon vs. Mitchell which resulted in the 26th amendment three years later, and The Dred Scott decision which led to the Civil War Amendments (13,14 and 15) eleven years later.

Another writer here says:

…but I would argue Rubio’s stance is historically out of line with mainstream American thinking on using the Constitution’s Article V amendment process to overturn errant Supreme Court rulings.  The 1795 ratification of the Eleventh Amendment, which was initiated in Congress as a direct response to what Congress viewed as the grievously wrongly decided Chisholm v. Georgia Supreme Court decision of 1793, is a testament to this enduring line of thought.  Based on his articulated logic today, Rubio would not have supported the adoption of the Eleventh Amendment.

Again, this line of thinking is Utopian, not realistic.  The situation in 1793 and the resulting 11th Amendment in 1795 is like comparing apples to oranges.  That was well before Marbury vs. Madison unless one wants to revisit that case.  Furthermore, in case anyone was not watching or listening, recent polls from 2015 indicate that greater than 50%- actually almost 60%- of Americans are not opposed to same sex marriage and that trend has steadily grown since 2001 when a majority of Americans opposed it.  If Congress could not get an amendment through Congress in 2005 when the GOP had the majority and 55% of Americans opposed gay marriage, what makes anyone rationally believe it is realistic now?

Obergfell can be overruled at some point and the definition of marriage returned to the states.  Remember, it like Lochner, Plessy,  and other decisions were controversial at the time, but eventually overturned by the Court.  The Rubio approach may not bring about the instant gratification of an amendment process doomed to failure, but it is certainly the more realistic approach.  So let’s get our heads out of the clouds and deal with reality.