AMENDING PROCESS (Update)

Formal amendment of the U.S. Constitution under the procedural supermajority rules set forth in Article V has been a remarkably rare occurrence. Of the many thousands of amendment proposals that have entered public discussion, only thirty-three have been proposed by Congress. Of those, only twenty-seven have been ratified by the states—with fully half of those consisting of the bill of rights and the reconstruction amendments. And the states have never initiated a constitutional convention. This experience contrasts sharply with the constitutional practice of the state governments, whose constitutions have been so frequently amended that they have taken on "the prolixity of a legal code"—a vice Chief Justice john marshall, in mcculloch v. maryland (1819), praised the federal Constitution for avoiding.

Several explanations may be offered for this sparing use of the power to amend the federal Constitution. First, Article V's requirements of supermajority approval in the Congress and wide geographical consensus among the states are, as intended, politically daunting as compared with enactment of ordinary legislation. Second, beyond these structural constraints, a political culture of self-restraint toward the founding document has developed from roots in the framing period. To be sure, Article V made amendment easier than it was under the articles of confederation, which required the consent of every state. Still, as james madison, a principal architect of Article V, cautioned in federalist No. 49, the amendment power was to be used only "for certain great and extraordinary occasions." This culture of self-restraint has been reinforced by such modern events as the failure of prohibition : the eighteenth amendment, which restricted the sale of alcoholic beverages, is the only amendment ever to be repealed, and that repeal, by the twenty-first amendment, was so arduous and time-consuming as to discourage other amendment efforts for a generation.

Third, the Supreme Court has interpreted the original document and its formal amendments with considerable latitude, enabling adaptation to new circumstances and to changes in social understanding without formal amendment. Marshall's capacious interpretation of the powers of the national government may be one reason why the Constitution was amended only twice between the Bill of Rights and Reconstruction. And during the new deal, constitutional strictures on the powers of the federal and state governments to engage in economic redistribution were relaxed by revisions in judicial interpretation rather than by amendment—a course that some scholars suggest the administration of President franklin d. roosevelt sought deliberately out of concern that an attempt at formal amendment would be politically untenable.

Against this backdrop of sparse constitutional amendment, the 1990s have witnessed two notable developments. First, although no newly proposed amendment has been adopted since the twenty-sixth amendment in 1971, an amendment first proposed by the first congress in 1789, in language drafted by James Madison, became the twenty-seventh amendment to the Constitution in 1992. This amendment, which delays the effect of any congressional pay raise until after the next election, lay dormant between its initial ratification by six states and the 1980s, when a wave of further state ratifications occurred. Michigan became the thirty-eighth state to ratify on May 7, 1992, providing the needed approval of three-fourths of the state legislatures. The National Archivist certified the amendment as part of the Constitution without congressional approval, and Congress voted thereafter to "accept" it. The apparent national consensus that the amendment was valid despite the two-century time lag between its first and last state ratification suggested that constitutional amendment does not depend on a contemporaneous expression of popular approval, but rather upon formal compliance with the procedures of Article V.

The second recent development is a striking and sudden proliferation of new constitutional amendment proposals that have gained serious consideration in Congress during the 1990s. This rash of constitutional amendment proposals represents the strongest concerted movement for constitutional change since the 1960s and 1970s, when over a dozen amendment proposals received serious consideration—including proposals to authorize school prayers, bar school busing of students for purposes of racial integration, and outlaw abortion, none of which ultimately was enacted.

The amendment proposals that reached the floor of the U.S. house of representatives or the U.S. senate or both bodies during the 1990s included measures that would require congressional supermajority approval in order to depart from a balanced budget; impose term limits upon members of Congress; authorize the federal and state governments to punish flag desecration; permit Congress greater latitude in regulating campaign finance; guarantee religious speech and participation in public programs; and require congressional supermajority approval of tax increases. Some of these amendment proposals, such as those on the balanced budget and flag desecration, failed by only one, two, or three votes in the Senate after passage in the House. Many other amendment proposals have received serious consideration in congressional committees, including measures that would guarantee victims' rights in criminal proceedings; give the President a lineitem veto; and exclude the native-born children of illegal immigrants from citizenship—as well as one that would amend the amendment process itself by making passage of amendments easier.

The recent amendment proposals have stirred debate between those who urge continued self-restraint and those who believe more frequent constitutional amendment appropriate. Opponents of ready resort to constitutional amendment argue that the function of the fundamental charter in providing national unity and stability would be undermined if it were cluttered with expressions of momentary political bargains, responses to transient social concerns, or aspirational statements designed largely for symbolic effect—all of which would make it more difficult for the citizenry to distinguish between constitutional law and ordinary politics. On this view, needed constitutional change can be accomplished better through the deliberative process of judicial interpretation than through populist processes that are likely to give short shrift to the effect of amendments on future generations, on existing structural arrangements, and on the related body of constitutional law.

Those who favor readier constitutional amendment, by contrast, stress that the principle of popular sovereignty is at the core of American constitutionalism, and caution against idolatrous reverence for existing constitutional text, citing the admonition of thomas jefferson against viewing the Constitution "like the ark of the covenant, too sacred to be touched." On this view, the elite and un-elected body of the Supreme Court has no monopoly on constitutional wisdom, and its own interpretations merit correction by amendment when they deviate too far from popular will—as proponents of the flag desecration, campaign finance, or term limits amendments suggest the Court did in such decisions as United States v. Eichman (1990), buckley v. valeo (1976), or U.S. Term Limits v. Thornton (1995).

The two camps agree that constitutional amendments ought not be used to solve problems that can be solved through ordinary legislation or the simple exercise of political will. They agree as well that constitutional amendments are sometimes appropriate to embody a compelling need for reform that responds to changed circumstances or consensus and is likely to be recognized as of abiding importance by future generations. They disagree on the scope of the amendment power on the continuum between these points.

Kathleen M. Sullivan
(2000)

(see also: Amendment Process (Outside Article V); Constitutional Dualism; Nonjudicial Interpretation of the Constitution; Transformation of Constitutional Law.)

Bibliography

Kyvig, David E. 1996 Explicit and Authentic Acts: Amending the U.S. Constitution 1776–1995. Lawrence: University of Kansas Press.

Levinson, Sanford, ed. 1995 Responding to Imperfection: The Theory and Practice of Constitutional Amendment. Princeton, N.J.: Princeton University Press.

Paulsen, Michael Stokes 1993 A General Theory of Article V: The Constitutional Lessons of the Twenty-Seventh Amendment. Yale Law Journal 103:677–789.

Sullivan, Kathleen M. 1996 Constitutional Constancy: Why Congress Should Cure Itself of Amendment Fever. Cardozo Law Review 17:691–704.