Prepared by the LWVUS Study Committee on Constitutional Amendments, July, 2015
This short paper presents a synopsis of the article, “Constitutional Amendmentitis,” by Kathleen Sullivan that first appeared in the December 19, 2001, issue of The American Prospect, http://prospect.org/article/constitutional-amendmentitis (accessed 6/19/2015).
Writing in 2001, Sullivan notes a flurry of activity, with more Constitutional amendment proposals active then (and now) than at any time since the 1970s. The Constitution is very difficult to amend. Of the 11,000 amendments that have been proposed since the Constitution was adopted, only 27 have actually passed. As a result, the Constitution remains a “relatively pristine document.”
Those that have passed have little altered the overall structure of the Constitution. According to Sullivan:
The first ten amendments, the Bill of Rights, were added in one fell swoop by the First Congress and ratified in 1791 as part of a bargain that had induced reluctant states to ratify the Constitution. And the 13th, 14th, and 15th Amendments, which abolished slavery and gave African Americans rights of equal citizenship, were essentially foisted on the southern states by the Reconstruction Congress as a condition of readmission to the union in the wake of the Civil War.
The remaining amendments have tinkered little with the original constitutional design. Four expanded the right to vote in federal elections: The 15th Amendment eliminated racial classifications in voting, the 19th extended the franchise to women, the 24th abolished the poll tax, and the 26th lowered the voting age. Only two tried outright to govern social policy: The 18th Amendment imposed Prohibition and the 21st repealed it. Only two amendments worked significant structural changes in the original constitutional framework: The 17th Amendment provided for popular election of senators and the 22nd imposed a two-term limit on the presidency. And only four amendments were enacted to overrule decisions of the Supreme Court: The 11th Amendment barred suits in federal court by citizens of one state against another state, the 14th recognized the United States citizenship of African Americans, the 16th permitted Congress to impose an income tax, and the 26th lowered the voting age to 18--all in contrast to what the Supreme Court had said the Constitution permitted or required. The remaining handful of amendments were national housekeeping measures, the most important of which was the 25th Amendment's establishment of procedures for presidential succession.
Against this backdrop, the current enthusiasm for amending the constitution is concerning in that “there are strong structural reasons for amending the Constitution only reluctantly and as a last resort.”
- Stability. It has stood the test of time. “If it ain’t broke, don’t fix it.” Stability is one of the key virtues of having a Constitution in the first place. Amending it too often undercuts that purpose and undermines public confidence in the basic structure of our government.
- The Rule of Law. The Constitution is our fundamental charter of government. It should not be cluttered up with the sorts of directives found in legislation. The point of having a constitution is to establish a separation between the legal and the political realms. The constitution lays down those fundamental political ideals (equality, representation, individual liberties) that place limits on how far any short-term, political majority may go. The Constitution is our higher law. The rest is politics. Too-frequent amendments erode the boundary between our higher law and politics, making support for the Constitution a matter of political preference.
- Coherence. The Constitution was written as a unified document; amendments are piecemeal and can affect other parts of the whole. For instance, a balanced budget amendment could affect taxing, borrowing, and spending currently accomplished by a simple majority vote by imposing supermajorities on these actions, thereby transferring so much power to the minority that they may extort concessions in other areas, with the potential for significant spill-over effects. This is only one example, but it is clear that amendments can create conflicts within the document as a whole and thus have repercussions beyond their specific subject matter.
- Generality. The Constitution is purposefully drafted in general terms. Specifics are to come through judicial interpretation. However, generally worded amendments can be problematic. Either by what it specifies or does not specify, an amendment can have the potential to effect a major change to our fundamental governing document such as a redistribution of powers among the three branches of government. Striking the appropriate balance is incredibly difficult to get right.
- The Role of the Court. We have granted the Supreme Court broad interpretive powers. Constitutional amendments, especially those that overturn Court decisions, undermine respect for the legitimacy of the Court. It also erodes the social benefits of peaceful conflict resolution. Remember that we have amended the Constitution only four times in order to overrule the Supreme Court. The Court itself can squander public respect by so abruptly changing interpretations of the Constitution that they appear more politics than law. But that fact does not strengthen the case for more readily amending the Constitution. Rather, it illustrates the very pitfalls of constitutional mutability that amendment fever would exacerbate.
In summary, this does not mean that the Constitution should never be amended. But for all the reasons outline above, there should be a strong presumption against doing so except when changes consistent with the Constitution’s broad purposes are unlikely to be enacted by ordinary legislative means.