Don't be surprised if David Letterman begins his monologue one of these nights by asking the audience in his faux-solicitous way: "Do you like constitutional amendments?"
Like them or hate them, three potential constitutional amendments have bubbled up into the public discussion: the Back-to-the-Future Equal Rights Amendment (rechristened the Women's Equality Amendment); a call to hack through the Gordian Knot of judicial interpretations of the Second Amendment by repealing it; and the Arnold Amendment, a favorite of the L.A. Times editorial board, which would enable Gov. Schwarzenegger and other naturalized citizens to aspire to the presidency. (In my youth, the idea was called the Kissinger Amendment.)
The funny thingfunny as in curious, not amusingis that of the three proposals the Arnold Amendment probably has the best chance of being adopted, though public support is underwhelming.
This might seem puzzling. Women's rights and the right to bear arms are consequential issues that affect millions of Americans and generate reams of legal commentary. Even some advocates of the Arnold Amendment concede that opening the White House to immigrants is a bit of a boutique cause. But the split makes sense when we understand that we're talking about two constitutions: one apparently sacrosanct and accorded religious devotion, the other subject to frequent revision.
Let's unpack the paradox. Congress and state legislatures don't mind amending the Constitution when it comes to technical or housekeeping matters. Such initiatives have included giving residents of Washington, D.C., a vote in presidential elections (the 23rd Amendment, ratified in 1961), lowering the voting age to 18 (the 26th Amendment, ratified in 1971) and preventing members of Congress from raising their own pay before an election (the 27th Amendment, proposed in 1789 but not ratified until 1992).
But attitudes shift when it comes to amending other parts of the Constitutionnotably the Bill of Rights, but also the post-Civil War 14th Amendment, which says that states may not deny "any person...the equal protection of the laws."
The conventional argument against reviving the ERA is that the Supreme Court has rendered it unnecessary by using the Equal Protection Clause to knock down barriers to sexual equality. (ERA advocates counter, correctly, that gender is still not a "suspect classification" in the way that race isbut the Supreme Court has been narrowing the gap.)
Yet the real reluctance, even among some feminists, to push for adoption of the ERA is rooted in something deeper, a pseudo-religious reverence for those provisions of the Constitution that contain what Justice Robert Jackson, referring to the Bill of Rights, called "majestic generalities."
The historian Michael Kammen calls this attitude "Constitution worship" and notes that it has a long pedigree. In his 1986 book, A Machine That Would Go of Itself, Kammen quotes a 1908 Supreme Court opinion celebrating the fact that the Constitution's provisions "are adaptable to the infinite variety of the changing conditions of our national life."
Really? How about the Seventh Amendment, which guarantees a jury trial in civil cases "where the value in controversy shall exceed twenty dollars." That monetary threshold, which has been eroded by inflation big-time (as Dick Cheney would say), is neither a "majestic generality" nor particularly adaptable to changing conditions. But it's in the Bill of Rights, and the Bill of Rights is the true totem of Constitution worship.
Just ask Sen. Patrick Leahy (D-Vt.). Last year, in opposing a flag-burning constitutional amendment, Leahy trembled at the suggestion that the Senate would "vote to amend the Bill of Rights of our United States Constitution because ... we deem it 'necessary' in 2006." Blasphemy!
Leahy was preaching to a liberal choir, but Constitution worship is ecumenical. After a federal appeals court ruled recently that the Second Amendment protected an individual right to bear arms, Benjamin Wittes wrote an essay for The New Republic in which he suggested: "Let's repeal the damn thing."
Wittes writes: "If, as gun-control supporters have long argued, the amendment embodies only a collective right and the right to keep guns is indelibly linked to membership in Revolution-era militiasinstitutions that no longer existthen the provision is already a dead letter, and repealing it would therefore be a simple matter of constitutional hygiene. If, on the other hand, the amendment really does...confer on individuals the right to bear arms, then it embodies values against which we should be prepared to fight" (though not with guns, presumably).
Like the Seventh Amendment, the Second Amendment benefits from gilt by association. In the company of provisions liberal Constitution-worshippers revere, like the First Amendment, it becomes untouchable. The Bill of Rights may be a list of amendments, but the idea of amending them is political sacrilege. That's why the right to bear arms (whatever that means) will remain on the books even if the Arnold Amendment is adopted.
Michael McGough is The Times' senior editorial writer.Copyright © 2014, Los Angeles Times