Saturday, February 20, 2010

Constitutional amendment crazy

Legislators making liberal use of constitutional amendment process

Anybody care to guess how many bills are in the legislative hopper to amend the state constitution?

A dozen?  Twenty? Thirty?

Try more than 80.  By our count, state lawmakers since last year have filed 83 bills that seek to amend the state constitution.

These bills seem to fall into three categories:

Legitimate uses of amendments. Several proposals seek structural changes to the constitution, a flexible document that sets a general vision of our state government.  This category of proposals can’t move forward by just passing a new law.  There needs to be a change to the constitution.  Example:  Changing the process involving constitutional officers, such as adjutant general or agriculture secretary.  Some say these officers should be appointed and become part of a governor’s cabinet because it’s time to modernize government.  But because these are constitutionally-mandated offices, the only way for them to become appointed is for the constitution to change.  Currently, there are 17 bills that would impact various constitutionally-elected offices.

Lazy amendments. Several bills seek to change the constitution for measures that could really be handled by law.  Examples:  Proposals to limit government spending or increase use of reserve funds.  State lawmakers don’t really need the crutch of a constitutional amendment for these kinds of ideas.  They just need to have fiscal and legislative discipline to stick to priorities.

Political amendments. Several constitutional proposals are political ideology or legislative matters cloaked as amendments.  In other words, they’re often partisan, political ideas cynically designed to be put on the statewide ballot to gin up interest in elections so people will get out to vote.  Example:  the recent same-sex marriage amendment from a few years back.  Same-sex marriage was already illegal in South Carolina via state statute, but conservative forces who wanted to make a political statement successfully got it on the ballot.  Current “political” proposals to amend the constitution include proposals to again allow video poker, force unions to allow secret ballots and shorten the legislative session.

Charleston School of Law constitutional law professor John Simpkins explains a constitution isn’t like a statute.

“It is not intended to be a law that is changed very easily,” he said.  “The amendment process is intended to be cumbersome – to be difficult, so that the document isn’t changed on a whim.

“When measures are introduced that are really legislative matters couched as constitutional matters, then they run the risk of doing great harm to what we intend by having a constitution – of injecting short-term political considerations into what should be a much more forward-looking arrangement.”

So far in this session, only one measure has been ratified to be on the November ballot.  It’s a proposed constitutional amendment to include a “right to hunt” in the state constitution – just the kind of political measure that loads the process with non-visionary matters that should be handled by laws.

State Rep. Brian White, R-Anderson, and seven other Republicans introduced the measure.  White, who said he came up with the idea before the National Rifle Association and other groups started an effort nationally to protect a right to hunt, said he was legitimately concerned that someone in the future would take away people’s right to hunt and fish in South Carolina – even though he knew of no proposals here over the last 10 years to harm people’s ability to hunt or fish.

“I don’t think you should mess with the constitution unless you’re trying to protect rights,” he admitted, adding that the “right to hunt” was such an issue.

But is this “right to hunt” something that’s really needed?  Perhaps a guide might be the state’s largest and oldest wildlife and hunting organization, the S.C. Wildlife Federation.

“It was not anything we felt like there was a real need for,” said Executive Director Ben Gregg.

State lawmakers should be conservative in how they amend the state constitution.  Yes, there are some structural issues that merit the ballot – adding justices to the Supreme Court, encouraging high-quality public education over a “minimally adequate” one, the right of initiative petitions and restructuring constitutional officers.

But they shouldn’t fiddle with any constitution as part of a game to score political points.  It’s too important to deserve such insincere, disrespectful treatment.

Andy Brack, publisher of Statehouse Report, is a former president of the S.C. Wildlife Federation.  He can be reached at:

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