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Susanne Powers (St. Paul) and Douglas Benson (Robbinsdale) protest the Gay marriage amendment being voted on in the Minnesota Senate at the capitol.

Jerry Holt, Star Tribune

Marriage Amendment: It might mean Constitution is amended, as intended

  • Article by: GREG WERSAL
  • May 11, 2011 - 10:04 PM

A possible solution to our constitutional debate over gay marriage can be found in Minnesota's constitutional history. In 1857, Republicans and Democrats found a way to solve the unsolvable.

The hatred and partisanship between Republicans and Democrats of that time had resulted in each party convening it own separate constitutional convention. It appeared that the two groups would never be able to agree on a single constitution for the state.

The primary stumbling block concerned the voting rights of blacks. The Democrats (largely aligned at the time with the South and its sympathizers) were willing to concede that Minnesota be a free state.

But they were adamant that blacks not be given the right to vote. The antislavery Republicans of the era were just as adamant that the equality of men before God meant not only that slavery was an abomination, but that blacks should be given the right to vote.

The disagreement seemed intractable. Then a grand compromise was found.

The two parties agreed to a state Constitution, which, as the Democrats insisted, did not provide for black suffrage. The Republicans, however, got a concession -- a newly worded constitutional provision creating the simplest process for amending a constitution found in any state.

Under this provision, a state constitutional amendment would take effect after a majority vote in each house of the Legislature and the approval of a bare majority of the people who chose to vote on that issue in a general election.

Within a few years of statehood, Republicans were able to amend Minnesota's Constitution to give blacks the vote. Many other amendments followed. So responsive was this amendment process that about three-fourths of all amendments proposed under it passed.

But later, some people decided that this constitutional provision was too responsive; that it was too easy to amend Minnesota's constitution.

So the constitution was changed to require not only majority support in each house of the Legislature, but also approval of all voters who voted in the next election, whether they marked a choice on the amendment or not.

This means that a nonvote on a proposed amendment has ever since been treated as a "no" vote. Since this process was adopted, a far smaller portion of proposed constitutional amendments have been adopted.

Today's Democrats argue that to place a marriage amendment in the state constitution "chisels it in granite" even if societal views change. This assumes the proposed constitutional amendment, once adopted, would be hard to change in the future.

The solution is to change that, not to deride the character or motive of the Republicans, who simply believe that the people should decide such important social policies.

As the Minnesota Constitution itself recognizes (Article 1, Section 1), government is instituted for the benefit of the "people in whom all political power is inherent together with the right to alter, modify or reform government whenever required by the public good."

The solution is that we need an easy way to amend our state Constitution -- just like we had when Minnesota became a state.

Greg Wersal is a Belle Plaine lawyer and was a candidate for the Minnesota Supreme Court in 2010.

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