What is a Constitutional Amendment?

One of the first places we have to start in a discussion about a Constitutional Amendment is to figure out exactly what it is.

Essentially, the Constitution is the base agreement that acts as the foundation for all other laws.  It outlines what the government can and can’t do.

The biggie, of course, is the US Constitution which was passed by Congress in 1789.  It has subsequently been “Amended” or changed 27 times.  Some of the amendments go back to just a few years after the initial passage (the Bill of Rights), and several more were done after the Civil War in order to confirm the changes brought about as a result of that conflict.

States all have a Constitution as well that serves to outline how that government will operate as well as the rights and obligations of its citizens.  A constitution is drafted by a “Constitutional Convention”, which is called in a variety of ways depending on the state you’re talking about.  In North Carolina’s case, each house of the General Assembly must pass legislation calling for a Constitutional Convention and a vote of the people thereafter agreeing with the decision and selecting the individuals who will work to draft that document.

North Carolina’s most recent Constitution was drafted in 1971.  It has been amended 28 times since then.  To amend the NC Constitution, 3/5 of the members of each house of the General Assembly must pass legislation approving the specific language to be used in the amendment.  The proposed amendment then goes to a vote of the people, where it must pass by a simple majority of the voters in order to become effective.

A constitutional amendment, and the legislation leading up to it, cannot be vetoed by the governor.

The complete text of the North Carolina Constitution and its amendments can be found at:  http://www.ncga.state.nc.us/legislation/constitution/ncconstitution.html.

Proposed Changes to the North Carolina Constitution

Last week was a tough one for lots of us who live in North Carolina.  The North Carolina General Assembly met for the purpose of determining whether or not to submit a constitutional amendment known as the “Defense of Marriage Act.”

The language of the proposal is deceptively simple:

Marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State. This section does not prohibit a private party from entering into contracts with another private party; nor does this section prohibit courts from adjudicating the rights of private parties pursuant to such contracts.

The question that many of us have, though, is whether or not a constitutional amendment of this type is necessary.  We already have a law on the books – North Carolina General Statutes Section 51-1.2, which says:

Marriages, whether created by common law, contracted, or performed outside of North Carolina, between individuals of the same gender are not valid in North Carolina.

So do we really need to write the same prohibition into the State Constitution?  What are the repercussions if this going to be?

The confusion is further enhanced by the fact that the ballot that will go to the general public will only have the first sentence on it – the part about not prohibiting private contracts isn’t a part of what the public gets to consider when they are voting.

The problem with that, as I understand it, is that the second sentence won’t be “law”.  It’s merely an explanatory note, which means that it’s subject to interpretation.

It might not seem like that’s a big deal – after all, some 30 states have constitutional amendments that limit marriage to one man and one woman and another 12 or so have statutes prohibiting it.  The difference, though, is that part about “. . . only domestic legal union. . . “, which is much broader than most of the rest of them.

How so?  Say a heterosexual couple have chosen not to get married – there are lots of reasons for this, from changing social security and retirement benefits to simply having vowed never to get “a piece of paper” again after a bad prior marriage.  With the proposed language in just the first sentence being enacted, it’s very possible that one person’s employer-sponsored health insurance may no longer be available to the other.

Say one person in the same couple has to go into the hospital for some type of emergency – their partner may be excluded from the hospital room or not be allowed to make medical decisions on their behalf because they’re not married.  Whether or not they could complete documents (such as a Health Care Power of Attorney) that would work around this is one of those questions that are up in the air, but there seem to be some pretty strong arguments that those types of documents would no longer be valid.


Suddenly the legislation seems to have missed its mark and is now impacting people not intended to be the target -- or maybe this collateral impact is in fact intended, but just not discussed.  It's hard to say which is the case.

These are legitimate questions that the voters of our state can answer either direction, but the potential for unintended consequences is pretty significant.  How many people will become uninsured – and thus a burden on society – if their unmarried partner’s health insurance is no longer available and regardless of their sexual orientation?

Are we as a society up to an informed and intelligent debate, or is this whole process likely to be sidetracked by special interests – both for and against – that may influence people who don’t do their homework before they vote?

This is going to take some thought.

What is the "Truth"

Benjamin Franklin said “A half truth is often a great lie,” which seems particularly applicable to the upcoming election cycle.  Most of the talking heads in the media – whether on the left or right, politician or pundit and regardless of the particular forum – are guilty of using half-truths.  Facts are shaded, “fuzzy math” is used to justify numbers and carefully worded statements and advertisements are generated that are not exactly untrue, but which might not stand up to strict scrutiny if examined by a truly neutral party.

Combine this shading of the truth with the tendency to demonize anyone who isn’t totally in agreement with your position, and it can make for some unpleasant conversations and actions, especially when it’s combined with the ardent refusal of elected officials to compromise on any position they feel will get them re-elected, sometimes without regard to whether or not they personally hold those particular beliefs.

So what’s the solution?  As I see it, the problem is two-fold.  First, we have elected officials who have forgotten that their obligation is to represent the entirety of their constituency, not just a vocal minority.  This can be difficult, since the vast majority of the population is far more concerned with keeping their job, making the mortgage payment, changing the oil in the car and getting new shoes for the kids than with abstract positions taken by politicians.  This means that the loudest individuals – whether because of their vocalizations or their checkbooks – have the greatest influence on our politicians.  These elected officials need to be reminded that there are a lot of people who elected them and who can un-elect them with the same process.  They need to hear from these people and understand that we’re watching and there will be consequences for actions.

The other thing that must occur is the same majority who are involved in their daily living have to take a break from those actions and work to educate themselves about the issues that affect our society.  This is easier said than done, because one trusts any source of information – especially 30 second media advertisements – at their own peril.  True, it’s much easier to inhale sound bites than to deal with more extensive research, but only by being a well-educated electorate will our country be able to truly elect those individuals who can work toward a reasoned consensus that will work to the benefit of the most individuals in our society.

Reflections on the Upcoming Elections

I haven’t written a lot lately because I’ve been in a somewhat reflective mood.  I have to admit, I’m not looking forward to the coming election season for the first time in my adult life.

I used to love to watch the political process and to endlessly debate the pros and cons of the different positions with other people (disagreeing with many in the process).  The thing was, there was truly a give and take in the discussions.  There was usually a mutual respect even if we disagreed (although we’ve all occasionally run into the blowhard we simply can’t tolerate).  Just because you disagreed with someone did not necessarily mean that you were mortal enemies.  Instead, it was like playing tennis with someone who’s your equal or even a bit better – win or lose, you enjoyed the process and moved on having enjoyed the interchange with a worthy adversary.

That changed a few election cycles ago, though.  Discussion was no longer respectful but degraded into a shouting match between opposing sides, with the one who was the loudest or the best funded able to form the message, without regard to the particular facts of the situation.

There no longer seemed to be different interpretations of agreed upon facts, but instead outright denial of “facts” and “truth”.  There was no longer merely a disagreement about interpretation, but instead a refusal to acknowledge that there is any foundation in the other side’s position whatsoever.  Truth began to be somewhat irrelevant.

The NC Gay Marriage Amendment

Johnson Law Office
Larry W. Johnson, Attorney
P.O. Box 2222
Hickory, NC 28603
Telephone (828) 304-0600
FAX (866) 609-5669
e-mail ljohnson@ljohnsonlawoffice.com

September 12, 2011

Dear Senators and Representatives:

I have practiced law and lived in Hickory since 1999. During that time, I’ve had the opportunity to see the significant changes happen in North Carolina, and especially in the Hickory Metropolitan Area, due to the decline in manufacturing and the decimation of our local economy.

I understand that representing the many and varied interests in our State is difficult, and a balance must be achieved between addressing those interests that have significant financial and economic impact and those that make a constituent base happy. There are times, though, that addressing the real issues that impact the most people has to take precedence over special interests.

The Amendment to the North Carolina Constitution to ban gay marriage is completely unnecessary, and serves only to create more divisiveness at a time when we should be banding together to try to rebuild our economy and our country. Rather than enhance the quality of life in North Carolina, it will serve only to confirm that in North Carolina a group of citizens qualify as “second class.”

I would much rather see my elected officials working to rebuild our economy and create jobs to put our citizens back to work than to waste the vast resources required to address a constitutional amendment into play merely to satisfy religious conservatives. We have statutes on the books that preclude marriage between other than one man and one woman. As an attorney practicing family law, I can assure you that nothing other than a traditional marriage is given any credibility. This is most obvious when one is trying to either dissolve a marriage or civil union from another state or, alternatively, to administer an estate of someone who was in a same-sex relationship. We don’t need a constitutional amendment, the statutes in place already deal with the situation.

This proposed legislation, in all of the iterations floating out there, does nothing to support traditional marriage and only creates confusion. There is significant concern that private companies who offer domestic partner benefits – regardless of the gender of those partners – will withdraw those benefits at a time when they are most needed.

One example is the fact that many, if not all, public hospitals offer domestic partner benefits. As quasi-state agencies, they may not be able to continue to offer these benefits. How many qualified doctors, nurses, and other healthcare providers will decide not to come to North Carolina because there are other states without these restrictions? What about University Professors, Municipal administrators, or even those associated with governmentally funded research, such as at the Research Triangle Park.

Is that really what North Carolina needs right now? It would seem more that this is a self-inflicted wound that may fester and further weaken our state’s economy.

I understand that there is a significant conservative voter base that is being appeased by the promotion of this legislation. Please remember, however, that there are a significant number of us who do not align with the ultra-conservative movement and propose instead a middle road of negotiation and compromise. We will also be the ones who turn out to vote in future elections, and will be looking closely at the prior actions of our elected officials.

I urge you to vote against any Constitutional Amendment that would further define marriage in the State of North Carolina. It is unnecessary and does nothing to serve the citizens of this state while at the same time creating the possibility for significant potential harm.

Sincerely,
Larry W. Johnson

Put a Stamp on It

One of the headlines today in The New York Times is that the US Postal Service is facing some pretty dire circumstances and will potentially default on a pension payment of $5.5 billion next month and may have to shut down sometime this winter. 

http://www.nytimes.com/2011/09/05/business/in-internet-age-postal-service-struggles-to-stay-solvent-and-relevant.html?pagewanted=1&_r=1

Does this really surprise anyone?

Let me say first of all that I like the people on the front line at our local post office.  I go in there most every weekday (since they’re now closed on Saturdays as well as Sundays), and they are without fail friendly and helpful.  They know the dog by name and are always pleasant, even when people are backed up out the door.  Although they try to up sell you to pricier delivery services, there’s no pressure to it – it’s more like a reminder that options are available than a squeeze to get more dollars out of you.

Here’s something else I’ve discovered – the frontline workers are every bit as frustrated with their management as the rest of us, even though they can’t really say a lot.

The post office has been all but a blueprint for how NOT to run a business, going back to about the time they started “Express Mail” as a competitive response to UPS and FedEx.  It has, however, been a dismal failure as anyone who’s tried to use it quickly realizes.

First, it’s simply not competitive.  I’m not talking so much about cost – if you try to overnight a 1 pound package from, say Hickory to Portland Oregon, the cost is about $32.00 for any of them.

The difference is that FedEx and UPS GUARANTEE that they’ll make the delivery.  If you read the fine print on the Post Office’s website, you’ll see that they’ll just promise to make a good effort to deliver it by the time promised, and if they don’t you’ll get your money back.

Here’s a news flash.  If I’m spending $32.00 to get a package delivered overnight, it DARNED WELL better get there.  I don’t want to hear woulda-shoulda-coulda or explanations about how it was all spelled out in the fine print that the delivery might not actually happen or that “overnight” really means “probably the next business day.”  If you pay for the service, you have a right to expect that it’s going to happen as a reasonable person would have understood the advertisement.

The unfortunate reality, however, is that their high dollar service consistently fails to meet expectations.  The few times I tried to use it (usually when I lived in towns where UPS and FedEx weren’t immediately available), I ended up trying to work my way out of the quagmire that resulted when things didn’t arrive when promised, an experience I’m not eager to repeat.  As a result, the failures of prior years continue to haunt them, because I’m unwilling risk it again for the difference of a few bucks.

The other thing that I think sours their customers is the fact that they simply make bad decisions and, since they’re this odd quasi-governmental entity, it’s right there in front of everyone. 

Let’s face it, Bank of America screws something up, they can hide it and nobody finds out about it because they’re a private company.  The post office makes a similar gaff and there are congressional hearings.

Oh, wait.  Never mind.

You get my point, though.  Some businesses seem bent on failure and continue to make decisions that most everyone else sees is disaster.

One particular point seems to jump out in the NY Times article.  “The agency’s labor contracts have long guaranteed no layoffs to the vast majority of its workers, and management agreed to a new no layoff-clause in a major union contract last May.” (Emphasis added).

Here’s a Business 101 News Flash – if you are in the brink of bankruptcy, you don’t go out and sign a new contract agreeing not to lay off employees, especially when you know that you need to trim 220,000 people – that’s not a typo it’s almost a QUARTER OF A MILLION EMPLOYEES – from the budget.

Instead, you communicate the seriousness of the situation to the workforce and make it clear that their actions can make the decision about whom is going to be in that group of 220,000 much easier.

You don’t renew a promise that you ought to know you can’t keep and then look for Congress to bail you out of your mess.

Leave that to Bank of America.

The other thing that most any marketing person would tell you is that you want to make your business place inviting when you’re trying to encourage people in.  In the past, this meant the bricks and mortar facility had to be clean, conveniently accessible and have enough parking.  Many post offices fail in this regard because they’re located in ancient buildings (which, admittedly, do seem to be relatively clean), downtown in places that are hard to get to and which have limited parking.

They may close some of these locations and move their facilities into Wal Mart.

While this may promote the sale of $.44 stamps, law offices, accountants, and insurance companies that are located downtown and within walking distance of the existing post offices – which I’d bet make up the bulk of the sales that are happening – are not going to be happy about having to have someone from their office schlep off across town to Wally World to make a mail run once, if not twice, a day.

This is not how you endear your customer base.

The other thing that is sadly lacking is an effective web presence.  The USPS website (www.usps.gov) isn’t at all consumer friendly in many ways.

You have to re-enter all the information for each package.  15 envelopes, all going to the same town?  You have to enter all the info 15 times.  It wants to know what day you’re going to mail them and the zip code for each envelope, even when that’s irrelevant – A first class letter costs the same to anywhere in the US, and it’s a nuisance to have to put in both my zip code and the recipient’s zip code over and over again.  I want to know how many stamps to put on the package, and it’s annoying to have to completely start over once you calculate an item.

Then, when you finally do get through, they’ve hidden the cheapest option at the bottom of the page and behind another window so you have to click yet again to make it come up.  If you’re unfamiliar with the site, it’s easy to think that you have to use the premium services rather than the cheaper ones.

It’s not dishonest.  It’s just marketing.  Some would even argue that it’s good marketing. 

But it breeds distrust and doesn’t do anything to help the post office rally public support for their cause.

This is unfortunate, because the folks working the front desk down at 28601 are genuinely nice people who are victims of the poor decisions that management is making.