Special Series: Perspectives from Undergraduate Law Students
J.D. Student Contribution
[Editor’s note: The students in my advanced seminar on constitutional amendment wrote excellent papers in their take-home examination for the course. They were given a choice of two questions to answer: (1) “Is the United States Constitution Too Difficult to Amend?”; or (2) “Assume the year is 1787. You are an advisor to a delegate to the Constitutional Convention in Philadelphia. What advice would you give about how to design Article V?” Below, I reproduce one of my student’s answers in response to to Question #1, with his permission. –Richard Albert]
–William Hendel, 2L at Boston College Law School
Much as been made of the obduracy of the Article V Amendment process. It is, unquestionably, among the most onerous amendment processes in the world (Vile, Constitutional Revision 396). But it is not the obstacle to progress that some have asserted. To borrow from Shakespeare, the fault is not in our process but in ourselves, that we are dissatisfied. Constitutions speak to timeless questions of natural rights, the people’s relationship to their government, and the balance of powers among political actors. With due respect to Mr. Jefferson, the answers to these questions probably do not change every twenty years, or even every two hundred years (Sullivan 694). Of course, they may change. And should they, the people need an avenue to effect their change of mind. Additionally, errors in the document may need correcting or ministerial duties may need tending. I submit that Article V has served all of these functions – from outlawing slavery to putting term limits on the President. The process has not failed us. We have failed the process. We have been unfaithful, and allowed another, faster, less democratic, less open avenue determine our constitutional destiny. We have made Article V an also-ran where it should have been uncontested. Thereby, we have made a difficult process unpalatable, and in many ways, irrelevant.
Constitutions should be very difficult to amend. As Marshall says in McCulloch v. Maryland, the Constitution is supposed to endure for ages to come (Sullivan 695). Timeless documents should not need to be updated with great frequency. Nor is it prudent to do so. As Sullivan observes, “relatively infrequent amendment preserves public confidence in the stability of the basic constitutional structure” (Sullivan 695). Reciprocally, frequent amendment will invariably bring the derisive political conflicts of the day into the foundational document. This will demote the Constitution to little more than a statute, and it will blur the line between politics and the rule of law. Sullivan points to the balanced budget amendment as an example of an effort to enshrine “a particular and highly contestable macroeconomic policy – no deficit spending – in the Constitution” (Sullivan 697). The Constitution is a statement of first principles and the blueprint for government structure. To treat the Constitution as anything less would engender resentment among large portions of the populace and irreparably damage the legitimacy of the document as a locus of authority.
Still another reason for an obdurate Article V is coherence and the protection of first principles that are, or at least should be, inviolable.
Since the people do ordain and establish the Constitution, their power of revision or destruction of the document is utterly unrestrained. The Ninth and Tenth Amendments make such a point expressly: the power and rights remain with the states and the people. Therefore, I cannot join advocates of theories of internal restraint on amendment the process. The basic structure doctrine, however prudent and however successful in India, is simply not valid in the United States; no court or congress or president has the authority to defend the Constitution against radical change, regardless of its content. That is not say, however, that I do not share similar concerns over the internal coherence of the Constitution or the survival of basic, inalienable rights. I agree empathically with William Harris when he says, “The Constitution cannot speak like a fitfully sleeping drunk, in disconnected words and phrases that act as freestanding decrees” (Galston 77). The founders shared such concerns, but they recognized the difference between impossibility and improvidence. The Constitution can say what ever the people want it say, so nothing is impossible. There is, however, a great deal it could say that would not be terribly sensible or just. That is why they designed Article V with such a high bar. Obduracy encourages debate and persuasion, and it demands consensus.
Admittedly, it is one thing to say the Constitution should not be easy to amend, and quite another to say should be essentially impossible to amend, as it is currently. Many people would agree with the above defense of obduracy but still argue that Article V asks too much. Of over 11,500 proposals submitted to Congress only thirty three have received the requisite two thirds vote in both Houses; twenty seven of the thirty three have been ratified by the states (Vile, Constitutional Revision 397). A study produced by Professor Lutz found that America had the second most onerous amendment process of the thirty two countries he surveyed (Vile, Constitutional Revision 396). Professor Forbath has noted with frustration how Article V empowers “well-healed and well-organized minorities” to obstruct overwhelmingly popular amendments (Forbath 1976). With respect to the New Deal, he notes, “The overbearing obduracy of the unamended Article V diminished the jurisgenerative politics of the New Deal moment, and deprived us of new constitutional texts – texts on which citizens and courts could have rested claims to extend and deepen our constitutional commitments in ways we would prize” (Forbath 1980). For Professor Forbath and many others, Article V’s de facto impossibility has harmed our nation by acting first as barrier to progress, and later, a potentially devastating Achilles’ heel that perpetually threatens progress.
But the show must go on. Civilizations and governments must evolve. Progress must continue, with or without Article V amendments. As Professor Ackerman points out, President Roosevelt still achieved his constitutional amendment through “transformative appointments”: “Call it a myth of rediscovery: a new wave of presidential appointments repudiates the Court’s immediate past by appealing to the ‘intent of the Framers’ of more distant times, and then reinterprets this intent in ways that give the President’s party new authority to enact its program” (Ackerman 1166). Or put more directly, President Roosevelt knew that he did not have the support to amend the Constitution, so he threatened to pack the court with his own appointees unless the Supreme Court amended its jurisprudence according to his plan for the country. He then appointed justices that would informally amend the Constitution to sanction his new vision for the country. This was perfectly legitimate, according to Ackerman, because Roosevelt had won “a decisive reelection on the basis of a political program advocating fundamental change in reigning constitutional principle” (Ackerman 1171). In essence, the obduracy of Article V birthed an alternative amendment path, through the executive and the judiciary, to meet the need to update a centuries-old governing document.
In fact, Ackerman has the events precisely backwards. Roosevelt’s employment of “transformative appointments” ensured that Article V would become an impossible and, indeed, irrelevant method for amending the Constitution. The exigency created the impossibility, not the other way around. “The New Deal Settlement”, as Professor Barnett calls it, established that “Congress can exercise unchecked power over the national economy and everything that may have affected it, limited only by the express guarantees of the Bill of Rights” (Barnett 814). This is not an amendment to the Constitution, but a fundamental redrafting of the document’s defining element – federalism. It does not merely violate the basic structure, but completely recasts it. As Barnett points out, before the New Deal, the Constitution provided for islands of government power in a sea of individual and states rights, after the New Deal we had islands of state and individual rights in sea of federal power (Barnett 816). The reason why Roosevelt found Article V an impossible road block was not because the process was unreasonable, but because he simply did not have enough support for a change of that magnitude. Arguably, the change he was seeking required a national convention and an entirely new Constitution, no matter how “decisive” his reelection. Article V was designed precisely so changes like “The New Deal Settlement” could not happen merely by fiat of the executive and acquiescence of the judiciary – the two branches, one must note, that are conspicuously absent from the Article V amending process.
Strauss only tells us part of the story when he says extra constitutional changes are so important and amendments are so rare, that the latter are almost irrelevant (Strauss 1474). Amendments are so rare, not because of the objective difficulty of the process but because of its relative difficulty; it’s simply easier to win an election and make the right appointments. If Article V was the only method of amendment, as was intended, we would find a way to get the necessary amendments passed. For instance, in the aftermath of the Civil War, we passed three amendments almost simultaneously to cure a scarcely fathomable injustice that was written into the original Constitution; the machinery of Article V moves when the proper pressure is applied. But that pressure will almost always take enormous effort. Merely wining a presidential election, where a 4% margin of victory is a landslide, is like knocking over a vase instead of a vending machine. We simply have no incentive to wrangle the necessary consensus. Nor are we required to take the initiative ourselves to call a convention, should we find Congress incapable of passing the necessary amendments themselves. Thus, Article V has essentially fallen into neglect, revived only in empty campaign promises and perfunctory proposals. It has been replaced by a nationalistic process, without the states, without meaningful debate, and without anything near a national consensus. And in comparison to the light threshold for appointment, Article V can very accurately be called impossible.
There is good reason to be distressed by the development of informal, unwritten amendment, at the expense of formal process, beyond a nostalgia for federalism. First, if the checking function of the formal amendment process is removed, the people have lost an important tool in constraining a wayward federal government (Vile & Denning 253). Second, without a proper amendment, we cannot record significant constitutional moments, as Professor Forbath laments. Instead, all Constitutional amendments will be subject to the inclinations of the current justices’ successors, and thereby, vulnerable to swift and easy disposal (Vile & Denning 257). Finally, without the formal amendment process we lose a powerful test of legitimacy. Without the process, the basis of the constitutional change is merely the opinion of five justices, rather than two thirds of both Houses of Congress (or convention) and three quarters of the states’ legislatures (or state conventions).
If, as I argue above, Article V was not drafted to be too onerous originally, a separate question is, given the continuing importance of proper amendments, is it too onerous now that we have accepted informal amendments by the judiciary? Some may say that the Amendment process is simply too important to become defunct. Article V needs to be more accessible to compete with the judicial process. With Article V posing such a high bar to amendment, the justices and – by extension – the elected presidents can change the Constitution with relative impunity, and even more troublingly, without clear authority or endorsement of the public. There is undoubtedly merit in the argument and legitimacy in the concern. I, however, still believe Article V, as it is drafted, is not the primary issue.
The President, Congress, and, to a certain extent, the Supreme Court, still answer to us. If we cared enough, we could make Presidents and their party responsible for Supreme Court justices who take it upon themselves to make amendments to the Constitution. Furthermore, we could punish members of Congress who approved the appointment of justices who did not restrain themselves. As far as the court is concerned, it is not directly responsible to the people but it is indirectly beholden to public opinion. As the weakest branch of government, with only the power of judgment, the Supreme Court depends upon our respect for its legitimacy. Therefore, a public expression of significant concern over perceived amendment would have influence. Of course, all of the above requires two impossibilities in the present political climate. One, we would need be engaged enough to read and analyze the Supreme Court’s rulings. And two, we would need the dispassion and respect for process to oppose opinions that go beyond the boundaries of the court – even if we support the outcome.
Another option, only slightly less fanciful, is popular referendum. Amar argues, quite convincingly, that Article V is not the people’s only recourse for amendment. Madison makes the point that the people, as the fountain of all power, can amend or dispose of constitutions as they please (Amar 97). James Wilson, signatory of both the Declaration of Independence and the Constitution states: “The truth is, that in our governments, the supreme, absolute, and uncontrollable power remains in the people. As the constitutions are superior to our legislatures, the people are superior to the constitutions. Indeed the superiority, in this last instance, is much greater, for the people possess over our constitution, control in act, as well as right” (Amar 98). Furthermore, the text of the Constitution itself supports Amar’s thesis, as the Preamble states explicitly that the document is ordained and established by the people; the Ninth and Tenth Amendments expressly locate the reserve rights and powers in the people (Amar 107). This is to say, the government can not stop the people from organizing and calling some type of convention to amend or even abolish the Constitution, Article V notwithstanding. Here again, however, the possibility runs into an unforgiving practical reality. The people would have to take initiative, organize themselves, without the federal government holding their hands. It might be pleasant to reflect upon if it was not so difficult to comprehend.
Article V creates an enormous barrier to Amendment. It should. The questions the Constitution engages are timeless, and therefore should only require reconsideration under the most extraordinary of circumstances. Furthermore, since the Constitution is a statement of our identity as people and our relationship to our government, amendment should only occur under significant consensus. The obduracy of Article V ensures consensus, and thereby limits risk of abuse, incoherence, and inconsistency. It is not the problem. The problem is informal amendment through the judiciary. In the judiciary, the consensus is only of five justices, representing, at most, three different law schools. It is undemocratic, unconstitutional, and protean – essentially everything that Article V was designed to prevent. But most of all, it is our fault. We have allowed presidents, congresses, and justices to take our sovereign power. It is up to us to take it back. If attention, engagement, and a baseline understanding of our relationship with our government asks too much, our complacency is terminal, and an easier amendment process will be no cure.
Suggested Citation: William Hendel, Is the United States Constitution Too Difficult to Amend?, Int’l J. Const. L. Blog, Feb. 20, 2015, at: http://www.iconnectblog.com/2015/01/is-the-united-states-constitution-too-difficult-to-amend
Bruce Ackerman, Transformative Appointments, 101 HARVARD LAW REVIEW 1164 (1988)
Akhil Reed Amar, Popular Sovereignty and Constitutional Amendment, in RESPONDING TO IMPERFECTION: THE THEORY AND PRACTICE OF CONSTITUTIONAL AMENDMENT 90 (Sanford Levinson ed., 1995)
Randy Barnett, The Case for the Repeal Amendment, 78 TENNESSEE LAW REVIEW 813 (2011)
Brannon Denning & John Vile, The Relevance of Constitutional Amendments: A Response to David Strauss, 77 TULANE LAW REVIEW 27 (2002)
William Forbath, The Politics of Constitutional Design: Obduracy and Amendability—A Comment on Ferejohn and Sager, 81 TEXAS LAW REVIEW 1966 (2003)
Miriam Galston, Theocracy in America: Should Core First Amendment Values be Permanent?, 37 HASTINGS CONSTITUTIONAL LAW QUARTERLY 65 (2009)
David A. Strauss, The Irrelevance of Constitutional Amendments, 114 HARVARD LAW REVIEW 1457 (2001)
Kathleen M. Sullivan, Constitutional Constancy: Why Congress Should Cure Itself of Amendment Fever, 17 Cardozo Law Review 691 (1996)
John R. Vile, Constitutional Revision in the United States of America, in ENGINEERING CONSTITUTIONAL CHANGE: A COMPARATIVE PERSPECTIVE ON EUROPE, CANADA AND THE USA 389 (Xenophon Contiades ed., 2013)