12/11/2008 05:12 am ET Updated May 25, 2011

Prop 8 and Rethinking the Amendment Process

Watching a recent speech by Naomi Klein, I was introduced to a new term: "hope-over." It's that cloudy, spent feeling hovering over this entire week. For me, it is mixed with more than a little nausea.

I spent the four days leading up to the election in Bloomington, Indiana, working with a ragtag team of volunteers to get out the vote. We didn't sleep. We ate bagels three meals a day and had doors slammed in our faces. On Election Night, I drove the four hours to Chicago and celebrated in Grant Park with a quarter million Obama supporters. And I brought all that euphoria home with me.

Then I opened my laptop and checked the late night news.

In three states, Florida, Arizona, and California, same-sex marriage bans were written into the Constitution.

The people of California expressed their anger by protesting, spray painting the sides of churches and railing against Black and Latino voters. Many, myself included, were frustrated with Obama for failing to come out against Proposition 8 early enough, and then only doing so tentatively, stating outright that gay marriage was not something he supported.

But after Election Night and the homophobic hope-over of the past few days, I've taken another look at the results from that night and decided that the state Constitution system itself is flawed.

If you look at the overall ballot measure results from the election, it's a mixed bag: Stem cell research got a leg up, gays got shot down. Affirmative action lost in Nebraska, but the right to abortion was upheld without new limitations in South Dakota, California and Colorado.

This inconsistent record does not indicate that America suffers from multiple personality disorder. Instead, it is reflective of a flawed process for amending state Constitutions.

The Federal Constitution has only ever been amended by requiring two-thirds of the vote in Congress. This deters change, ensures that the document itself stays consistent, and encourages flexibility of definitions within the Constitution to accommodate shifting social realities. This also deters amendments that are too specific, too clearly aimed at degrading one kind of citizen or one kind of practice. It simply takes too many votes to get most pet issues through the amendment process.

Many state constitutions, on the other hand, permit amendments with just fifty percent of the popular vote. That means that even though 49% of Californians believe that the right to marry should apply to LGBT people, the entire state no longer has that right. This lower threshold encourages the random assortment of specific amendments we saw in this election and will see in many elections to come.

A change in the amendment process for states will not always ensure the protection of minority rights. In fact, it might make gay marriage harder to establish in certain jurisdictions. But it will encourage consistency. It will deter attacks on specific rights and groups of people. And it will do much to end regressive political movements that seek to take away rights their Constitution has already granted.