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| published Wednesday, February 22, 2006 |
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Marty Trillhaase
February 9, 2006
Idaho Falls Post Register
Nothing reveals a generation's conscience, aspirations and abject
failures as much as its fundamental law.
Customs, prejudices, even codes and laws, fade with time.
But the stain of poor judgment enshrined within a constitution is
difficult to escape and impossible to erase.
The United States suffered through four years of Civil War before it
could pass the 13th Amendment eradicating slavery, the 14th Amendment
extending citizenship, due process and equal protection to all and the
15th Amendment protecting the vote for all men (suffrage for women
wouldn't come for another six decades), regardless of race.
You'll find some noble words in those amendments.
But dig back a few paragraphs and you find the stigma of slavery. One
section protects slaveholders by requiring free states to return slaves
who escaped into their territory. Another says that "all other persons"
- meaning slaves in the Southern states - should be counted as
three-fifths of a person for purposes of representation in Congress.
One-half of our country was so certain of its inherent superiority over
a racial minority that it arrogantly insisted upon having that belief
cast within the foundation of the Constitution. And to consummate the
union, the other half agreed.
Today, those sections are inoperative and archaic. But they remain very
much a part of our revered Constitution - for the entire world to see.
Idaho's law books chronicle some equally sorry chapters.
At the time of statehood, in 1890, our founders included a section
barring Mormons from voting, sitting on juries and holding any civil
office [see below]. Read those words and the meaning is unmistakable: A
majority of Idahoans were so certain of their moral superiority over a
religious minority that they were willing to put it in our state
charter.
For good measure, they extended the same prohibitions on Chinese, people
of Mongolian descent and Indians who "had not severed their tribal
relations ..."
It was never enforced. The 13th, 14th and 15th amendments to the federal
Constitution got in the way. Still, it took Idahoans 92 years to repeal
it. Editors have sanitized the offensive words out of the current
version, but it's not too hard to find. Pick up Idaho's state law books
and look for the compiler's notes.
It's there for the world to see.
American history is full of horror stories: Jim Crow laws, the
internment of Japanese-Americans during the Second World War, the
McCarthy era and wiretapping of political dissidents.
At least those are viewed as mistakes, seen through the prism of
constitutional protections that were violated. We erred because we did
not follow our constitutional ideals. Those mistakes stand as
aberrations, not monuments to hubris.
Now we in Idaho are being asked to amend our state constitution. If we
agree, our state charter will outlaw gay marriage.
As law, it's meaningless. Idaho already has a Defense of Marriage Act -
and should the U.S. Supreme Court ever recognize gay marriage, neither
Idaho's anti-gay marriage statute nor a state constitutional amendment
is likely to stand.
But for the duration of our civilization, Idaho's Constitution would
forever include language stating that gays are less deserving of the
blessings of liberty than the rest of us.
Once passed by the Legislature and the voters, it's going to remain.
Repealing it would take a two-thirds vote of the Idaho House and Senate
plus a majority of Idaho voters. The same one-third plus one that is
frustrating today's attempts to pass the current amendment would stand
in the way of its repeal.
Even if a more tolerant time unfolds in a generation or two, and that
language is rescinded, it will remain a part of our constitutional
history.
Are we that certain that we're right?
What will our grandchildren and their children think of us when they
read what we have written?
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"No person is permitted to vote, serve as a juror or hold any civil
office who . . . is a bigamist or polygamist, or is living in what is
known as patriarchal, plural or celestial marriage . . . or who, in any
manner, teaches, advises, counsels, aids or encourages any person to
enter into bigamy, polygamy, or such patriarchal, plural, or celestial
marriage, or . . . who is a member of, or contributes to the support,
aid or encouragement of, any order, organization, association,
corporation, or society which teaches, advises, counsels, encourages or
aids any person to enter into bigamy, polygamy or such patriarchal or
plural marriage, or which teaches or advises that the laws of this state
prescribing rules of civil conduct are not the supreme law of the
state." - Idaho Constitution, 1890
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