By Albert Samaha
By Steve Weinstein
By Devon Maloney
By Tessa Stuart
By Alison Flowers
By Albert Samaha
By Jesse Jarnow
By Eric Tsetsi
Two other post-World War II amendments were sparked (as was the proposed ban on gay marriage) by specific events. Republicans smarting at President Franklin D. Roosevelt's breaking of the two-term tradition sent the Twenty-Second Amendment to the states, and it was ratified in 1951. The Twenty-Fifth Amendment, on presidential succession and the nomination of a new vice president, was ratified four years after President John F. Kennedy's assassination. I cannot escape the feeling that a ban on gay marriage has more of the feel of the proposed flag-burning or school-prayer amendments than those defining the two highest offices in the land.
There is one possible means of state ratification that might lessen the chances that 13 state chambers could oppose a ban on gay marriages. Article V offers two ways that Congress can choose for the states to ratify an amendment. Twenty-six of the 27 amendments have been ratified by (majority votes in) state legislatures. But Congress can specify that ratification must be by conventions specially selected for that task. The one time that Congress told the states to use conventions was with the Twenty-First Amendment, which repealed Prohibition (and the Eighteenth Amendment). Congress wanted a single-issue vote on who the ratifiers would be because it believed (accurately) that the wets would prevail over the drys if no other issues intervened. Similarly here, Congress might call for conventions in the belief that on the single issue of banning gay marriage, the voters would be more likely to choose people who supported the ban if an election had only that issue on the ballot.
The framers of the Constitution knowingly created a super-majority requirement for amendment. They intentionally made amendment difficult. It is doubtful, however, that they could have foreseen how difficult it would prove to be. But it is difficult, and that is why the smart money will bet that Bush's proposal will die somewhere along the arduous process.
L.A. Scot Powe Jr. holds the Anne Green Regents Chair at the University of Texas, where he teaches in the School of Law and the College of Liberal Arts. He is the author of four books, most recentlyThe Warren Court and American Politics.