The Electric Commentary

Wednesday, December 07, 2005

Wisconsin may enshrine bigotry in their constitution

Right now the Wisconsin Senate is debating a Constitutional amendment that would prohibit gay marriage and civil unions in the state of Wisconsin. If the amendment passes both houses of congress it will then be voted on in a statewide referendum. To enact a Constitutional amendment in Wisconsin, the amendment must pass two consecutive sessions of congress, and then a statewide referendum. This measure has already passed one session of congress.

Wisconsin conservatives should be ashamed of themselves for proposing this perversion of the legislative process.

Here is Article 1 of the Wisconsin Constitution. This is the section that is based on the US Constitution's Bill of Rights. Note that all of these provisions expressly protect individual rights from the state. The purpose of a Constitution is to establish the framework of the government and to establish the boundaries of the government's influence. Almost all state constitutions, as well as the US Constitution, include these "Bill of Rights" provisions as an extra protection against potential state abuses. The drafters of the various constitutions wanted to be absolutely sure that these rights were never violated, and that is why these rights are expressly protected.

The Constitution is not the place for a law that restricts the rights of individuals. When the government is seeking to restrict the rights of certain individuals, for whatever reason, the proper procedure is to do so through the passage of a law. So why are Wisconsin conservatives pursuing this through a Constitutional amendment? There are two reasons.

The first reason is that the governor of Wisconsin, Jim Doyle, is a democrat, and he will veto any bill of this nature. Wisconsin is a bit strange right now. Conservatives have an overwhelming majority in both houses of congress, but they do not control the governor's office. Constitutional amendments do not require the governor's signature, and so the Constitutional amendment option serves as a run around the normal restrictions of divided government.

The second reason is that conservatives fear that "activist judges" will "legislate gay marriage into existence from the bench." This is a stupid argument. First of all, this is true of any law. Does the fear of a judicial ruling justify a constitutional amendment on every issue? If the legislature wishes to cut taxes by 15%, but fears that the tax cut will be found unconstitutional, should they instead proposes a Constitutional amendment? What is so special about gay marriage? Second, there is a more reasonable solution to this problem. Republicans can simply appoint more judges (or have more judges elected). This should be easy as they control all branches of state government (except the governor's office), and all branches of the federal government.

There is a third, unspoken reason as well. While the majority of Wisconsinites currently agree with the substance of this amendment, the overwhelming majority of young people do not. (Paul Brewer covered this several times before his blog hiatus.) Placing this amendment in the Constitution makes it very difficult to repeal later on. In a very real sense, older people are attempting to disenfranchise young people in the future.

There are several reasons that this is also bad policy, but that is not the point of this post. My point is simply that conservatives are seriously abusing the amendment process for nefarious reasons. Conservatives consistently complain about "liberal judges" abusing their positions to create laws that would never pass the legislature. Amending the Constitution for this purpose is at least as subversive, but it is more offensive by several orders of magnitude.


  • Wow, I can't believe there's no comments on this. I fully expected to see tons of follow-up to this.

    By Anonymous Anonymous, at 10:28 AM  

  • Me too. I've even been picking fights with Wisco conservative bloggers, to no avail. Perhaps my arguments are unassailable.

    By Blogger PaulNoonan, at 11:00 AM  

  • Incidentally, when I reread this post it seemed stilted to me. I then realized it was because I originally wrote is using quite a bit of profanity, which I then edited out (firewall concerns). Apparently the profanity was important to the flow.

    By Blogger PaulNoonan, at 11:02 AM  

  • Maybe they would comment if you offered to box them between posts?

    By Anonymous Scott, at 5:10 PM  

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