What Belongs in a 'Bill of Rights'?

According to the Washington Post, the advertisement that shows the Virginia Bill of Rights in flames, which this blog's readers saw weeks ago, is now being shown on television across the state:

An organization that opposes a ballot measure that would constitutionally ban same-sex marriage in Virginia is buying a TV commercial to run statewide, marking an intensifying effort to defeat the amendment.

The 30-second ad, which will begin appearing throughout the state today on CNN, shows an image of Virginia's 230-year-old Bill of Rights slowly being engulfed in flames. A narrator warns gravely that the amendment would "destroy" the spirit of the state's Bill of Rights, which served as the model for the U.S. Bill of Rights. A second ad will appear next week, officials said....

"Read all of Ballot Question One closely," the male narrator says. "Every unmarried couple could lose their rights. Like guardianship rights. And inheritance rights. . . . It goes way too far."

Earlier this week, echoing that TV ad's message, a distinguished former member of the U.S. House of Representatives, Republican M. Caldwell Butler, published an article in the Roanoke Times that explained why he is opposing the amendment, which will appear as Ballot Question #1 on the November 7 ballot.

Butler, who voluntarily retired from Congress in 1983 -- unlike our contemporary legislators, the majority of whom retire only when faced with scandal or indictment -- has been practicing law in Roanoke since then. The descendant of another Member of Congress from Virginia (James A. Walker), Butler also served as Republican floor leader in the Virginia House of Delegates.

Here's a synopsis of his long career, as posted in the Biographical Directory of the U.S. Congress:

BUTLER, Manley Caldwell, (great grandson of James A. Walker), a Representative from Virginia; born in Roanoke, Va., June 2, 1925; graduated from Jefferson Senior High School, Roanoke, Va., 1942; A.B., University of Richmond (Va.), 1948; LL.B., University of Virginia Law School, Charlottesville, 1950; ensign, United States Navy, 1943-1946; admitted to the Virginia bar in 1950 and commenced practice in Roanoke; lawyer, private practice; elected to Virginia house of delegates from Roanoke, 1962-1971, serving as chairman of the joint Republican caucus, 1964-1966, and as minority leader, 1966-1971; elected simultaneously as a Republican to the Ninety-second and Ninety-third Congress by special election to fill the vacancy caused by the resignation of United States Representative Richard H. Poff, and reelected to the four succeeding Congresses (November 7, 1972- January 3, 1983); was not a candidate for reelection to the Ninety-eighth Congress in 1982; resumed the practice of law in Roanoke; is a resident of Roanoke, Va.

In 2001, the General Assembly passed a resolution in tribute to Butler and his service to Virginia. Sponsored by such prominent conservative Republicans as H. Morgan Griffith (who is now the Republican floor leader in the House, the same post held by Butler more than 35 years ago), Kathy J. Byron, Jay K. Katzen (who was the Republican nominee for Lieutenant Governor in 2001), R. Steven Landes, and Glenn M. Weatherholtz, among others, House Joint Resolution No. 895 stated:

WHEREAS, Manley Caldwell Butler of Roanoke has served the citizens of Roanoke and the Commonwealth in a variety of roles for more than 40 years; and

WHEREAS, a native of Roanoke, Caldwell Butler was educated in the Roanoke public schools and is a graduate of the University of Richmond and the University of Virginia Law School; and

WHEREAS, in 1961, running with the encouragement of his friend and former law partner, Linwood Holton, Caldwell Butler won election to the House of Delegates from the 57th House District in Roanoke City; and

WHEREAS, Caldwell Butler became House Minority Leader, leading a small but determined band of Republicans throughout the 1960s; and

WHEREAS, Caldwell Butler won his last term in the House of Delegates in 1969, running as a favor to Linwood Holton, who that year won election as Governor and relied heavily on Caldwell Butler's legislative leadership for the first two years of his term; and

WHEREAS, in 1972 Caldwell Butler won election to the United States House of Representatives from the 6th Congressional District and quickly won acclaim as a member of the House Judiciary Committee during the impeachment proceedings against President Nixon; and

WHEREAS, throughout his legislative career in Richmond and in Washington, Caldwell Butler earned a reputation for independence, choosing to represent his constituents as he saw fit rather than rely on partisan politics or coalition building; and

WHEREAS, Caldwell Butler's independence led him to take often controversial but always principled stands on issues as varied as the Voting Rights Act, abortion, bankruptcy laws and constitutional amendments regarding the federal budget and equal rights; and

WHEREAS, since his retirement from the Congress in 1982, Caldwell Butler has continued to be an active and influential member of the Republican Party and has been an inspiration to a new generation of politicians; now, therefore, be it

RESOLVED by the House of Delegates, the Senate concurring, That the General Assembly commend Manley Caldwell Butler for his many years of distinguished service to the citizens of Roanoke and the Commonwealth; and, be it

RESOLVED FURTHER, That the Clerk of the House of Delegates prepare a copy of this resolution for presentation to Manley Caldwell Butler as an expression of the General Assembly's admiration and appreciation for his courageous, committed and trailblazing political career.

So it is clear that M. Caldwell Butler was -- and is -- no lightweight. Note how his fellow legislators admire his "reputation for independence" and his "often controversial but always principled stands on issues."

No wonder Butler's opinion has been sought and savored for many years. That is why his op-ed piece in last Thursday's Roanoke Times, headlined "Amendment doesn't belong in Virginia's Bill of Rights," deserves particular attention.

The article itself is evidence for why institutional memory is so important, especially in politics. Butler was active in politics and government when Virginia's constitution was revised and repromulgated in 1971. So he begins his argument by hearkening back to the process that created the fundamental law of the Commonwealth:

A significant guideline to constitution change, set forth in the 542-page Report of the Commission that led to the last major revision of the Virginia constitution in 1971, reads as follows:

"A constitution embodies fundamental law. It follows that a constitution is not a code of laws, and that unnecessary detail, not touching on fundamental matters, ought to be left to the statute books. Once the fundamentals have been provided for, most other matters can safely be left to the political and legislative process."

The proposed constitutional amendment on marriage would do violence to the above stated principle in that it is addressed to a matter that is clearly the province of the legislature alone.

Pointing out that laws defining marriage have already been passed by the General Assembly and are part of the Virginia Code, Butler offers that he he is unaware of "any precedent" for adding to the Constitution something that is already part of the regular code of laws on the books.

He then gives us something of a history lesson, explaining the heritage of Virginia's Bill of Rights (something touched on in the Commonwealth Coalition's ad):

The first constitution of Virginia included a Bill of Rights that is still in the present constitution. Indeed, the only changes in the Bill of Rights in the major revisions in 1971 were largely cosmetic, and the only addition thereto since 1971 was approved in 1996 ("Rights of Victims of Crime").

The General Assembly of Virginia now proposes an amendment to be placed in Article I entitled "Bill of Rights Section 15A Marriage."

The 17 sections of the Bill of Rights have been in our constitution since it was first put together in 1776, beginning with Section 1 ("Equality and Rights of Men") and ending with "Free Exercise of Religion." It was the first of the state bills of rights. The author of our "Declaration of Rights" was George Mason.

The first draft considered by the General Assembly on May 27, 1776, and widely circulated at the time, has been called by one scholar, "The most influential constitutional document in American history." It was incorporated at least in part in many if not most of the constitutions of the original 13 states and many others. It is something of which (in its present form) we can all be proud.

Finally, in language reminiscent of the finely-tuned argument by conservative jurist J. Harvie Wilkinson in the Washington Post a few months ago, Butler concludes:

Simply stated, the proposed language (which is mean-spirited, unwarranted, poorly drafted and already in the code itself) does not belong in the constitution of Virginia, and certainly nowhere in our Bill of Rights.

Vote "no" on Proposed Amendment No. 1 to the constitution of Virginia.

Caldwell Butler is not distinguished simply because he is old. No, in this case the octogenarian is distinguished also because he is right -- and correct. His argument, derived from the experience of decades of service as a Goldwater-Ford-Reagan conservative, is one that resonates with Virginia voters, especially other conservative voters.

Don't be surprised if, within the next week or ten days, many more conservative Republicans "come out of the closet" and announce their well-considered, principled opposition to the Marshall/Newman amendment and add their own admonition to vote "no" on Ballot Question No. 1 on November 7.