Making Amends

Explicit and Authentic Acts: Amending the U.S. Constitution, 1776-1995

by David E. Kyvig
(University Press of Kansas, 604 pp., $55)

It is remarkable, though it is not exactly news, that members of Congress have been spending a lot of time on constitutional amendments. There is now a large budget deficit. Should we simply outlaw it, by means of the Constitution? The Supreme Court says that protesters have a constitutional right to burn the American flag. If that is a vexation, might we fix it with a new constitutional provision? Last year President Clinton added his own proposed amendment to the mix, designed to protect "victims' rights," and there are many other people who think that our criminal justice system does too little to help "victims." Perhaps a constitutional change would make things better.

The enthusiasm for constitutional amendments has proved remarkably contagious. The right to life, congressional term limits, minimal welfare guarantees, the line-item veto, school prayer, public prayer, religious freedom, environmental protection, exclusion from citizenship of children of illegal immigrants: all these, and more, have attracted enthusiastic support from people interested in changing the Constitution. Over 200 amendment proposals are now pending before Congress. I will bet that within the next decade the nation will seriously debate constitutional amendments designed to make English the official language of the United States, to close our borders to immigrants, to solve the problems of Social Security, and both to forbid and to allow homosexual marriage.

All the noise has made it hard to focus on what the amendment process is, or was, supposed to be about. There is an intriguing link, of course, between the idea of constitutional amendment and the boldest aspirations of the Constitution's Framers. The Constitution was itself a self-conscious exercise in popular sovereignty, having emerged from an extended process of deliberation by "We the People." And Article V of the Constitution--the provision that momentously authorized amendments--was indispensable both to the theory of the document and to its ratification.

For the founding generation, the animating feature of the American departure from English constitutionalism was the rejection of the monarchical heritage in favor of a new conception of political sovereignty. In America, sovereignty lay with the people, not with the king, and the people were to be sovereign over the Constitution itself. This idea helped to support the Founders' belief that the Constitution was far from permanent. It was in this spirit that Thomas Jefferson complained, near the end of his life, that

Some men look at constitutions with sanctimonious reverence, and deem them like the ark of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I knew that age well; I belonged to it, and labored with it.... It was very like the present, but without the experience of the present ... and this they would say themselves, were they to rise from the dead.... Let us not weakly believe that one generation is not as capable as another of taking care of itself.... [T]he dead have no rights.

Jefferson was more enthusiastic about constitutional change than some of his compatriots, especially James Madison. Still, in associating the amending of power with the central idea of republican self-government, the founding generation was remarkably unified.

Two hundred years later, the American Constitution, whatever it may say, is remarkably different from the Constitution that was bequeathed to us. We can see, as the Framers could not, that the Constitution changes in several ways, not just one. It has been changed by textual amendments, the Article V way; but changes in constitutional understandings have also occurred as a result of popular movements that altered not a single word in the text. And constitutional change can be led by judges, who produce new "readings" of the Constitution when they resolve particular disputes. To see how the Constitution changes, and to understand the current debates over constitutional amendment, it is important to understand the peculiar features of these diverse methods for producing changed constitutional understandings--and this raises big questions about democracy, judicial review and especially populism. But this is to get ahead of the story.

David Kyvig's book is an extended historical discussion of constitutional amendment in America. It is exhaustive and sometimes exhausting. Kyvig gives a magisterial overview, and fascinating detail, without providing clear organizing claims. From the historian's welter, though, three themes emerge. First, the amendment process has mostly functioned in the way it was intended to function: it has provided a formal means by which numerous American-style revolutions, large and small, have occurred nonviolently and through specified legal forms. Second, the massive, constitution-like changes of Franklin Delano Roosevelt's New Deal could and should have occurred through the amendment process. We can easily imagine a textual amendment that would have supported the New Deal's shifts, by increasing the authority of the national government, making room for more in the way of administrative and presidential power and limiting rights of private property and freedom of contract; and if the New Deal had been officially ratified by constitutional means--as it might have been, but for the country's traumatized reaction to the prohibition amendment--it would have been more legitimate, and its legacy would have been more enduring. And third, the debate over constitutional amendment broaches America's complicated and ambivalent attitude toward a single notion with strong Jeffersonian roots: democratic populism. This last theme is mainly implicit in Kyvig's book, but in some ways it is the most interesting theme of all.

As his daunting subtitle suggests, Kyvig's discussion is organized chronologically. He begins with a detailed consideration of the roots and the nature of the American theory of constitutionalism, which, as he shows, was intimately connected with the commitment to popular sovereignty. The Declaration of Independence set the stage, announcing the American Revolution through its vigorous assertion of the primacy of self-government over traditional legal formalities. The national Constitution stemmed from an insistence that the people are superior to their rulers, even when those rulers are democratically elected. The Constitution's superiority to ordinary political choice reflected a judgment that the people, not the government, must have the last word. In Kyvig's formulation, the power of constitutional amendment, making a secure place for revolutionary reform by non-revolutionary means, was a "corollary" to the basic theory.

To the Founders, this much was altogether clear. There was no consensus, however, about what the amending power should entail. What role should the national legislature play in constitutional change? The initial Virginia plan said that "provision should be made for amendment whensoever it shall seem necessary," and also that "assent of the National Legislature ought not to be required thereto." The idea seemed to be that amendment would be an act of the people, not an act of Congress, and hence a requirement of legislative assent would be an anti-republican restriction on self-government. George Mason offered important support for this view, suggesting that there should be "an easy, regular, and Constitutional way" instead of "chance and violence," and that the national legislature might "abuse their power, and refuse their consent on that very account."

As so often, it was Madison who proposed the ultimate accord, allowing two routes to amendment. First, two-thirds of both Houses of Congress may propose amendments, to be ratified by three-fourths of state legislatures. Second, two-thirds of state legislatures may apply to Congress to call a convention for proposing amendments, again to be ratified by three-fourths of state legislatures. In either event, ratification may take place not by three-fourths of state legislatures, but by three-fourths of state "conventions." This is Article V in its current form.

Article V was no mere detail. It was indispensable to the ratification of the Constitution. Connecticut, Pennsylvania, North Carolina and Massachusetts all faced significant opposition to the new framework, and in all of these states the prospect of amendment was crucial. Speaking floridly, and for many, James Iredell said at the North Carolina convention: "Happy this, the country we live in! The Constitution before us, if it be adopted, can be altered with as much regularity, and as little confusion, as any act of Assembly...." And George Washington summarized the new dispensation when, in leaving office in 1796, he stressed that the government is "the offspring of our own choice, uninfluenced and unawed, adopted upon full investigation and mature deliberation," and the Constitution "till changed by an explicit and authentic act of the whole people is sacredly obligatory upon all."

Much of the popular enthusiasm for the amendment process, of course, was connected with the biggest complaint of the Constitution's critics: the absence of a bill of rights. Ratification took place with the understanding that such a bill would likely be added in the near future. And just two years after ratification of the Constitution, the nation ratified the ten provisions of the Bill of Rights. They comprise more than one-third of the total amendments to the Constitution.

For the next seventy years, the amending power fell into a state of near-disuse. (The Eleventh Amendment, creating a kind of sovereign immunity for states in federal court, and the Twelfth Amendment, making technical changes in the Electoral College, are important but narrow exceptions.) The reasons for this development are not entirely clear. A significant factor was undoubtedly the interpretive practice of the Supreme Court, especially under John Marshall. The Court construed the powers of the federal government very broadly, in a way that allowed adaptation to new circumstances, and hence made amendment less necessary. In this way, judicial interpretation, an important source of change in constitutional meaning, became a crucial complement to constitutional amendment.

At the same time, several early eighteenth-century efforts to solve national problems through the amendment route failed to achieve consensus. The most notable example was slavery, where compromise proved impossible. The process of revolution by legal forms was superseded by outright warfare. But the Civil War was followed by crucial constitutional amendments, constituting what is sometimes described as a second American Revolution and a second constitutional "regime." Such descriptions are not hyperbolic. The Civil War and its amendments fundamentally altered the three cornerstones of the constitutional order: individual rights, federalism and the separation of powers. The Thirteenth Amendment abolished slavery and gave Congress broad new authority; the Fourteenth Amendment contained the privileges and immunities clause, the equal protection clause and the due process clause, inaugurating an enormous expansion in individual rights, providing the basis for most of modern law of equality and liberty and also granting new powers to Congress; and the Fifteenth Amendment guaranteed the vote regardless of race. Kyvig offers a detailed account of these changes.

After the Civil War period, there was little serious amendment activity until the second decade of the twentieth century, when the progressive movement, enthusiastic about populist democracy, fueled new interest in constitutional change. Two seemingly unrelated proposals proved successful, and had nation-transforming consequences: the ban on alcoholic beverages and the guarantee of the vote to women. What is especially intriguing is that the first of these amendments seems truly bizarre, the model for fanatical constitutional populism, a serious warning about any new amendment proposal; and the second seems uncontroversially correct, a reflection of what sustained popular deliberation can do, a solid precedent to be invoked by any enthusiast for constitutional change. In fact, the two amendments were closely linked. Women, including many interested in sex equality, worked hard on the temperance movement, partly for reasons of sex equality itself, arguing that alcoholism produced domestic violence and proved destructive of women's rights within the family. Many reformers saw close connections among the seemingly diverse causes of family protection, temperance, marriage and property law reform, voting rights, health reform and access to education and employment.

Kyvig shows even tighter links. In 1852, Susan B. Anthony was a vigorous crusader for temperance, but when she rose to discuss a motion at the convention of the New York Sons of Temperance, she was prohibited from doing so and told that "women were not invited there to speak but to listen and learn." Perceiving misogyny in the organized temperance movement, Anthony left the hall and founded a women's anti-drink organization; and having done so, she was repeatedly excluded from male-dominated organizations. In 1853 she abandoned the cause of temperance and joined Elizabeth Cady Stanton to work for the right to vote, which was then seen as the most radical of women's demands. What became known as the Susan B. Anthony amendment was taken up in 1913 by Alice Paul, a Quaker social worker, ultimately producing a parade of 50,000 suffragettes marching down Pennsylvania Avenue before Woodrow Wilson's inauguration. This parade proved pivotal to the success of the suffrage campaign, as indifferent District of Columbia police officers provided the marchers with little protection from a large and abusive crowd.

By 1920, progressive sentiments, together with the success of the prohibition and women's suffrage campaigns, generated a high degree of national enthusiasm for the whole idea of constitutional amendment. For the progressives--in some ways Jefferson's heirs--constitutional change was a central instrument by which the sovereign people governed themselves. But the enthusiasm was short-lived. A part of the problem involved the women's movement, which quickly became divided over possible constitutional remedies. In 1923, Alice Paul introduced a simple equal rights amendment--"men and women shall have equal rights throughout the United States"--but it went nowhere. The deeper problem was national prohibition. Objections to prohibition increased steadily after ratification, as about one-third of Americans continued to drink, and the concern over that amendment turned into a general concern about amendment itself. Critics of the prohibition amendment invoked constitutional conservatism to attack the amendment (and, implicitly, amendments themselves) as a form of constitutional "mutilation." Kyvig suggests that the failure of the prohibition amendment played a role in discouraging explicit constitutional amendment in the New Deal era.

The New Deal is a central focus of Kyvig's book, which is altogether proper. The New Deal is an important period for anyone thinking seriously about the topic of constitutional change. Indeed, the New Deal can be described as nothing less than America's third constitutional revolution. Kyvig's special interest is in Roosevelt's consideration, during the crucial period between 1935 and 1937, of explicit constitutional change as a way of legitimating the New Deal reforms. Kyvig firmly endorses the view that the New Deal profoundly altered basic constitutional commitments. It did so by granting the national government powers that were formerly held by the states, dramatically expanding the powers of the president, creating a massive federal bureaucracy with a new set of administrative agencies, and reconceiving individual rights in a way that stressed market freedoms much less and the interest in economic and social security much more. What is especially remarkable, and to Kyvig especially anomalous, is that all this occurred without changing a single word in the Constitution.

To be sure, the New Deal reforms were resisted on self-consciously constitutional grounds, partly by the Supreme Court, partly by the nation as a whole. And before 1937, many New Deal enthusiasts had decided to support a constitutional amendment extending federal power under the Constitution's "general welfare" clause, inviting the national government to engage in a wide range of particular tasks. Still, Roosevelt and his advisers thought the amendment path "thorny" and likely to make the New Deal "bog down." For this reason, Roosevelt endorsed interpretation over amendment, urging publicly that the "vital need is not an alteration of our fundamental law, but an increasingly enlightened view with reference to it." Privately, he said that the real problem was intensely practical: there was too much money on the line for business interests to be willing to allow a constitutional amendment to pass. Kyvig thinks that Roosevelt was wrong. In his view, a constitutional amendment was indeed possible. The Roosevelt administration badly misunderstood the mechanics of the process, and, perhaps most damningly, the Constitution was for the New Dealers "a stumbling block to be circumvented, not a structure to be lived in and remodeled to suit." Kyvig invokes George Washington, with his enthusiasm for "explicit and authentic acts" of the people, against Roosevelt.

In the 1930s and 1940s, there were a number of efforts, some with substantial support, to limit the effect of New Deal reforms. But the most significant of these went nowhere. The nation saw little successful amendment activity until the 1960s, which produced no fewer than four amendments: granting the right to vote in presidential elections to residents of the District of Columbia; banning poll taxes; lowering the minimum voting age to 18; and making arrangements for presidential succession in case of presidential disability. These were important, to be sure, but during a period of national tumult, they were relatively modest and targeted.

In the same general period, Congress endorsed two important amendments that failed to achieve the necessary support among the states. The first of these would have granted the District of Columbia representation in Congress. The second was the Equal Rights Amendment (ERA), rooted in the work of Alice Paul and Susan B. Anthony. Kyvig thinks that the ERA's failure--a long and complex story, well-told here--was relatively unimportant and that the principal lesson of its failure is that constitutional change, via legal interpretation, can occur without formal constitutional amendment. In fact, the equal protection clause of the Fourteenth Amendment, taken to embody a general principle not limited to race, has come to operate as a ban on sex discrimination.

The 1960s also saw the emergence of what might be called the modern era of constitutional amendment. Constitutional change has been sought largely by conservatives disturbed or even enraged by certain cultural and political trends, often associated in some vague way with the Supreme Court or "the courts." Amendment has been urged as a way of restoring a golden age of responsibility, unity, self-discipline and old-fashioned virtues. In the 1960s, conservative populists pressed a whole series of proposed amendments. They attempted to restore prayer to the public schools, to repeal the one-person-one-vote rule, and to ban "busing" remedies as a response to racial segregation. All of these efforts failed, but they set the stage for the developments to follow. Since the election of Ronald Reagan, as Kyvig shows, amendment politics have had a social conservative edge closely associated with cultural issues. Consider some of the recent proposals: to allow government to prevent flag "desecration," to protect "victims' rights," to balance the budget, to overturn Roe v. Wade, to restore prayer to schools, to protect "religious freedom."

Of these, the balanced budget amendment has been the most widely supported and hotly contested. Congress may propose that amendment before long. Of the current crop of proposals, it stands the greatest chance of near-term ratification. And although it involves economic policy, it is reasonably grouped with the more conspicuously cultural amendments, whose appeal stems from their association with values such as self-restraint.

Kyvig's book is packed with intriguing details, but its importance lies in how it shifts focus away from particulars and toward some broader points. The debate over constitutional amendment has everything to do with populism as a political creed and with the appropriate role of the Supreme Court in American government. No one thinks that the Constitution is carved in stone. A constitution cannot possibly mean the same thing now that it meant several generations ago. Everyone knows that more frequent amendment would involve more in the way of populism--government by referendum--and everyone knows that this would be a threat to the Supreme Court's current role. In this way, we can explain some of the ironies in the present political discussion. Liberals have been playing Edmund Burke, emphasizing in solemn tones the need not to tinker with our constitutional heritage. Conservatives have been playing Thomas Jefferson, invoking the voice of the people and seeing constitutional change as an indispensable way of solving present-day dilemmas. Still, the appearances are misleading. The real issues involve the risks of populism and the legitimacy of the interpretive practices of the Supreme Court.

Kyvig is not very systematic in unpacking the actual sources of constitutional change; he is also not very systematic in defining the whole idea of constitutional change. To understand our history and our options, it is important to emphasize that explicit amendment is only one way that understandings of the Constitution change. Even without a textual amendment, periods of sustained social upheaval can produce entirely novel readings of the Constitution. The text itself is not changed, but it is seen in a new, sometimes radically different way. The New Deal is only the most obvious example. Not only Franklin Delano Roosevelt, but also Martin Luther King Jr., Gloria Steinem and Ronald Reagan have helped to produce a form of constitutional change in America.

Consider the current understandings of the Constitution's guarantee of "equal protection of the laws." With respect to both race and sex discrimination, that provision means something very different now from what it meant in 1950. Why has this change occurred? Undoubtedly the civil rights movement contributed a great deal to the view (once quite radical, now taken as a constitutional truism) that government may almost never discriminate on the basis of race. And as Kyvig shows, the women's movement has had enormous success at a level of constitutional principle, even with the failure of the Equal Rights Amendment. The Supreme Court's decision just last year, striking down all-male education at the Virginia Military Institute, confirms Kyvig's suggestion that the law has gone a long way toward recognizing what the Equal Rights Amendment would have required.

The Court's opinion was written by Ruth Bader Ginsburg, the most important legal advocate for sex equality and now regarded as a heroine of constitutional law. The fact that Ginsburg is so regarded is a tribute to changing social judgments on the matter of sex equality; it facilitated her appointment to the Supreme Court, an appointment that helped to confirm the view that with respect to sex equality, constitutional understandings have been dramatically revised. Apart from textual amendments, then, a kind of constitutional change occurs as fresh social judgments press hard against pre-existing understandings of the old text. Once they become widespread, culturally and politically, those judgments eventually win acceptance within the Supreme Court. And changes of this less formal kind have another distinct attraction: in a sense, they are democratically achieved.

And there is still another route to constitutional change, involving a less democratic, judge-led process. Much of constitutional law is a tradition of "common law" development, as judges specify and alter constitutional meaning through analogical reasoning in the course of deciding individual disputes. Slowly, incrementally, case by case, sometimes almost imperceptibly, substantial changes occur over time. Kyvig is focused on large-scale decisions, and on whether they happen through the formal amendment process, and so he gives scant attention to this phenomenon. But it is as a result of this process of common law development that the meaning of the Constitution is often different from what it was, say, thirty years ago.

Take just one example. Americans often talk as if "the freedom of speech," as a constitutional principle, means now what it has always meant, as if Supreme Court decisions protecting alcohol advertisements, or expenditures on campaigns, or disclosure of the names of rape victims, or Larry Flynt, are entirely continuous with the work of James Madison. In the last thirty-five years, however, judicial decisions have thoroughly revolutionized the law of freedom of expression--not through a single step, but through a process of analogical reasoning and case-by-case development. It is in this extraordinary period of new readings that the Court has protected commercial advertising, prohibited the states from applying their ordinary libel law, protected advocacy of crime (including violent overthrow of government), given rise to the general understanding that "hate speech" may not be banned, and greatly expanded the protection given to sexually explicit speech. Each of these developments renovates pre-existing law. Our First Amendment is very different from the First Amendment of our parents, let alone that of the Founders. Similar innovations can be found in the law governing religious liberty, freedom from unreasonable searches and seizures and separation of powers itself.

These points beg an important question. How do we know when the Constitution changes? When the Constitution is read in a new way, it may or may not be "changed." New understandings may be a way of keeping faith with old constitutional provisions under altered conditions. If the Fourth Amendment, banning unreasonable searches and seizures, is applied to wiretapping, or eavesdropping on the Internet, it is being understood in a new way, but it is not really being changed. When the Supreme Court interpreted the commerce clause to give Congress far broader powers in 1940 than it had in 1820, perhaps it was because changed conditions made the economy so much more interdependent, and hence the new reading may not have changed the Constitution at all. Sometimes novel readings of the Constitution, by popular movements or by judges, really do change the Constitution, because those readings cannot fairly be understood as a way of interpreting it under current conditions. But novel readings, even apparently adventurous ones, are sometimes reasonable interpretations and ought not to qualify as constitutional "amendments." Whether we have constitutional change depends on our theory or interpretation. Kyvig does not really discuss these distinctions. He does not investigate the thin and contestable line between a genuine amendment, textual or not, and a novel reading that keeps faith with the existing Constitution.

This is the picture that emerges. Changes in constitutional understandings are brought about by three mechanisms: altered constitutional text; reforms in social judgments about facts, values and needs, ultimately ratified judicially through new understandings of old text; and common law. There is a continuum, of course, between the second and third mechanisms. Common law change is unlikely to occur unless democratic forces are moving in the same direction. There are links between the Supreme Court and the electorate: the appointments process, the Court's fear of intense public backlash, the Court's inevitable reaction to intensely felt public desires. These links assure that the common law process is affected by widely held popular convictions.

We are now in a position to see that those who are hostile to the recent amendments are not engaged in ancestor-worship and do not really believe that the Constitution is "too sacred to be touched." They favor the more gradual, more interpretive, less populist methods that have dominated constitutional processes since the New Deal. We are also in a better position to evaluate Kyvig's enthusiasm for "explicit and authentic acts." A judgment on that subject must depend not only on history, but also on an assessment of which institutions and practices are likely to create the most serious risks. Which mechanisms of constitutional change, formal amendments or changed readings, are best?

If the Supreme Court's interpretive methods are systematically illegitimate and unreliable, if the common law process is an abuse and a charade, then explicit and relatively frequent amendment makes a good deal of sense, as a way of correcting mistaken interpretations and deterring the Court from continuing its course. Or if the post-New Deal methods turn the Constitution into a malleable document, and not a text of "law" at all, there is reason to use the formal route more often. But if the Court as it stands is not likely to be so bad, and if public judgments about how to change the constitutional text are ill-informed and potentially harmful, there is much less to fear from reliance on the more informal vehicles of change that have come to characterize American constitutional life. If changed understandings of the Constitution through those informal routes--led sometimes democratically, sometimes judicially--are more informed, more easily corrected and more fruitfully gradual than the Article V method, then there is reason to prefer them to Article V and the great drama of amendment.

Thus the real issues behind the debate over constitutional amendment are different from what they seem. The important debates are about populism as a democratic ideal and the modern role of the Supreme Court. And no simple view about those debates would make much sense. As our history suggests, it would be foolish to favor one method of constitutional change to the exclusion of others. And without pretending to resolve those debates here, we may be able to make a little progress by insisting (with the Framers) that the Constitution is a republican document, not a populist document, embodying an aspiration to democracy and deliberation; that the Constitution does not create a system of government by referendum; and that the Constitution places a high premium on a system of public reason-giving in which officials do not simply respond to snapshots of public opinion.

A deliberative democracy is certainly not one in which the principal judgments of political morality are made by Supreme Court justices. But neither is it a system in which fundamental judgments are a product of plebiscites. The danger in the recent outpouring of enthusiasm for constitutional amendments is that it is essentially childish. The balanced budget amendment would not balance the budget (itself an ideal of uncertain value); instead of making the hard choices involved in appropriations and tax policy, it would constitutionalize an empty, unenforceable aspiration. A flag desecration amendment certainly would not promote patriotism and national unity, any more than a victims' rights amendment would have meaningful effects on crime. And it should be no surprise to find that the plebiscite-like quality of modern politics, captured in an astounding outburst of referenda at the state level, has led to amendment proposals that are mostly paybacks, bumper stickers and symbols.

To say this is emphatically not to say that "explicit and authentic" constitutional amendments deserve no place in American democracy. Sometimes amendments fix practical problems. Sometimes they reflect hard-won moral commitments. In such cases, the symbolic nature of the relevant amendments is nothing to deplore. And that is the point. Constitutional amendments have enduring importance in a system that prizes America's distinctive conception of sovereignty. That conception is badly served by those who see the Constitution as too sacred to be touched, but it is also badly served by those who think that sovereignty is located in coalitions that can be stirred up by controversial Supreme Court decisions, or that seek to solve national problems with slogans, innuendos and nostalgia.

By Cass R. Sunstein