Beware the anti-freedom amendment

DURHAM -- The U.S. Senate wisely defeated a proposed constitutional amendment on Wednesday that would ban gay marriage. Only one amendment in our nation's history reduced the freedom that Americans enjoy, and we know from our history books that Prohibition did not work out well.

We should learn from our past and think carefully before amending our Constitution to narrow its promises of liberty and equality. There was certainly no need for such an amendment in this case.

Most provisions in our Bill of Rights safeguard individual liberty. None restricts human freedom. The First Amendment, for example, protects free speech, a free press, freedom of religion, and freedom from religion. The Fourth Amendment prohibits unreasonable searches and seizures, and the Eighth Amendment bans cruel and unusual punishments.

The Civil War Amendments add equality to our constitutional protections. The 13th Amendment abolishes slavery. The 14th Amendment declares that all people born here are citizens and pronounces in majestic language that no state may deny any person due process of law or equal protection of the laws. The 15th Amendment mandates that no one may be denied the right to vote on account of race.

The rest of the amendments -- only 27 in all -- follow the same pattern. The 19th Amendment extended the suffrage to women and the 26th Amendment lowered the voting age to 18. The 24th Amendment did away with poll taxes.

Only the 18th Amendment, which established Prohibition, restricted the freedom that Americans enjoy, and it was undone by the 21st Amendment. The only amendment that reduced our liberty or equality is the only one that was repealed.

Americans properly regard the amendments that expand human freedom as a national treasure. Amending the Constitution to reduce freedom freezes a particular viewpoint in a way that can be very difficult to change, even as social attitudes may change profoundly. If, for example, a constitutional amendment banning interracial marriage had been proposed in the 1950s, it would have later been proven to be shamefully shortsighted.

This is not to say we should never amend the Constitution to limit freedom -- the past is not an infallible counselor to the present. But we should make sure that a need for such an amendment exists before we pursue a path with a dubious history.

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Which brings us to President Bush's call for an amendment banning gay marriage. No federal court has declared that homosexuals have a constitutional right to marry. The U.S. Supreme Court explicitly avoided addressing the issue of gay marriage in a recent sexual privacy case. And under federal law, states need not recognize gay marriages from other states. As Sen. Joseph Biden recently remarked, "We already have a law, the Defense of Marriage Act....Why do we need a constitutional amendment?"

At the very least, the argument for amending the Constitution to protect state choices is premature because such a mechanism already exists and no state choices have been displaced.

As for the actions of state and local officials, including state judges, they are best dealt with by the states themselves. It is stunning that many of the same people who preach the virtues of federalism and local control want to settle the issue of gay marriage decisively at the national level, regardless of whether citizens in different states feel differently about the issue. States have traditionally regulated marriage within their borders, and they will continue to do so absent an amendment banning gay marriage. From a federalism perspective, an argument in favor of a national rule is unavailing.

The president must know that the proposed gay-marriage amendment is a political and constitutional loser. Presumably, that is why he avoided the issue after being re-elected. Yet even after the Senate's display of good sense this week, the president gave no indication that he plans to stop encouraging a culture war. "Our nation's founders set a high bar for amending our Constitution," he said, "and history has shown us that it can take several tries before an amendment builds the two-thirds support it needs in both houses of Congress."

It's unfortunate that the president and his conservative allies in the Senate have been devoting precious time and resources to a misguided cause that everyone knew would fail. With our country beset by a multitude of major problems -- from terrorism to Iraq, Afghanistan, energy, deficits and corruption -- one would have thought that no president or senator had any time to spare.

(Neil S. Siegel is an assistant professor of law and political science at Duke University.)