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. Earlier this year, we published another student answer to this question. It is available here. –Richard Albert]
–Theodore Tibbitts, 2L at Boston College Law School
Many scholars have bemoaned the difficulty of the amendment process in the United States. Donald Lutz describes it as the second most difficult amendment process in the world. (Vile, Constitutional Revision in the United States of America, 2013, p. 396). David Strauss has argued that because amendments are so difficult, and so rare, that they’ve essentially become meaningless, being replaced functionally by informal, judicial amendments. (Strauss, 2001, pp. 1457-59). Lester Orfield summarized the argument more than half a century ago that the congressional barriers to amendments are on a practical level insuperable – and while there have been amendments since then, we have been in such a drought in recent years that one may rightly ask if it is even possible anymore to amend the Constitution. (Orfield, 1942, p. 172). Can a system that has become so difficult to amend that someone might rightfully claim it is now impossible to amend be considered to be working properly?
My answer to this question must be equivocal. Ultimately it depends on exactly what sort of values you think the Constitution does, or at least should, enshrine, whether it is currently successful in doing so, and what one views the proper function of a Constitution as being.
There are two interconnected but distinct and arguably contradictory theories of constitutional construction I would like to identify that are relevant to this. Firstly, there is the conception that Constitution exists limit the power of the federal government – either over the people, the states, or both. Others might argue the Constitution exists to limit the power of majorities over minorities – that is, it serves a counter-majoritarian function of protecting minority rights. There are many instances where these two theories overlap, but they also differ on some key points, and which function one views as the primary function for the Constitution is highly relevant to any discussion of whether the current amendment rules are too stringent.
One scholar who falls decidedly on the first end of the spectrum – that is, the Constitution exists as a check only on the federal government, and not as a protector of minority rights – is Akhil Amar. In his work, Popular Sovereignty and Constitutional Amendments, Amar advocates for an interpretation of the Constitution as not only contemplating, but specifically allowing for a simple majority referendum as a way of amending the Constitution. (Amar, 1995, p. 89). Amar spends much of his work explicating why we can, in fact, exercise this power within the bounds of the Constitution – a point with which I disagree, although that is not relevant here – but does not, in fact, directly address whether or not we should. Much like the scientists in Jurassic Park who unleashed something too powerful for them to control without understanding the consequences, Mr. Amar hand-waves the possible consequences of simple majority rule as an issue of terminology and political theory, stating without support that individual rights in our system should be the result of ultimately majoritarian processes. (Amar, 1995, pp. 111-112). Given that Amar surely saw himself as a theorist in the minority arguing an uphill battle against traditional perspectives on our government and wishing only to establish the historical legitimacy of his theory, not necessarily its viability as a political system, one can forgive the short shrift he gives to the political exigencies of replacing our constitutional republic with a simple democracy with one swell foop of his word processor. But when tackling the deeper issues of whether, in fact, the Constitution should be easier to amend – rather than whether it, in fact, is easier to amend – one needs to consider not merely the mechanics but the ramifications, both philosophical and actual, of one’s theory of amendment.
Standing perhaps on the opposite end of the ideological spectrum of theoretical Constitutional amend ability is Kathleen Sullivan. An outlier in today’s scholarly discussion, she is concerned with the specter of (mostly far right) abuse of the amendment procedures to pass “substantive” amendments. (Sullivan, 1996, pp. 703-4). Although she couches her argument in more neutral tones, she appears rather straightforwardly to be arguing for amendments only on procedural and structural grounds, rather than on substantive grounds. She attempts to signal her political neutrality by stating she think ultimately it was healthier or the country to resolve the equal rights amendment through the normal judicial and legislative process rather than through a Constitutional Amendment, yet one wonders if she would really be willing to put her money where her mouth is and advocate against adopting such an amendment if it were proposed today. (Sullivan, 1996, p. 704). The sheer profusion of conservative Constitutional amendment proposals and relative dearth of liberal ones at the time her article was written makes her argument a relatively convenient one to make – she need only concede a battle already lost (ERA) in order to argue carte blanc against the adoption of a whole slew of conservative amendments. It could be, however, that in today’s world of Citizens United she might wish to pen a different article.
Political exigencies aside, however, Sullivan expounds several reasons why we might not want an easily amendable Constitution. Unlike Amar, who primarily argues whether we can amend the Constitution, Sullivan is considerably more concerned about whether we should. Whereas Amar is proposing a “new” (or perhaps, “uncovered”) way of amending the Constitution, Sullivan is in fact arguing not only implicitly against any easier methods of amending the Constitution, but in fact in using restraint when utilizing our actual, accepted method – essentially arguing that amending the Constitution should in fact be even harder than it is on paper.
One major reason Sullivan gives for a less amendable Constitution is stability. (Sullivan, 1996, p. 695). Quoting James Madison’s arguments against an overly mutable Constitution, she makes the case that having a low amendability increases national stability. It is, in fact, somewhat unfortunate she did not have the time and space to expand more upon this argument, as she gives but a singular example – the United States. Although our Constitution has stood the test of time for more than two centuries, one of the first written Constitutions in the world, a sample size of one is nevertheless unconvincing that a more amendable Constitution might not be just as stable. Similar to how Amar does not explicate why popular sovereignty and majority rule is obviously desirable, Sullivan likewise does not explain why explicitly stability is desirable, either – some may take for granted that both are, as clearly the authors do, but that is an assumption that can be questioned. In any case, though, regardless of flaws in the presentation of the argument, it is difficult to deny the fact that our current Constitution has stood the test of time – and so many others have not. Whether this is at all related to its relatively unamendable nature is much harder to determine, but it is definitely not a factor to be ignored.
Her second argument is that an easily amended Constitution would undermine the rule of law – that is, government being run according to a set of agreed upon rules rather than the whims of one or a few men. She makes some good points regarding easy amendments transforming the document from a weighty dictate of ultimate rules to ordinary legislation, but once again seems to be missing a key point – that is, judicial amendment. (Sullivan, 1996, pp. 695-696). Although this is, in fact, her fifth point – that over use of amendments undermines the role of the court in our system – she fails to realize that placing high barriers on amendment is in fact a big reason for why the court has such broad interpretive latitude. (Sullivan, 1996, p. 702). Like hydraulic pressure, if one area of the law is too constrictive to meet the needs of society, another area will give, and in our system, that area is undoubtedly judicial review. David Strauss recognized this phenomenon is his application of Ackerman’s theory of informal amendments and the irrelevance of Constitutional amendments, as applied to the examples of the Child Labor amendment and the Equal Rights Amendment. (Strauss, 2001, p. 1478). Essentially, society as a whole demanded these changes, and when the amendment process failed to bring them about, the court acquiesced and changed its traditional mode of interpretation to match presumably what would have been the case if the amendments had passed. Sullivan believes this process is healthier for the nation than the amendment process, but this process simultaneously undermines the rule of law and in much more egregious ways than an easier amendment process would. Even under the easiest of amendment processes, one still has a written text which is nominally supreme, even if that text may be changing rapidly. With a rampant court reinterpreting the document every year, however, the text is staying the same, but the meaning is held hostage to the whims of five people on a nine person court. Doesn’t that undermine the rule of law far more significantly?
Sullivan, however, wants a system where minority rights are protected against the tyranny of the majority. It is telling that in her coherence argument, she discusses flag burning and religious equality amendments – both arguably curtailing the first amendment and designed to privilege a conventional, conservative, Christian perspective. (Sullivan, 1996, pp. 699-700). It is political radicals who burn flags and it is the religious majority that wants prayer in schools no matter how uncomfortable or excluded or oppressed it makes those of the non-majority religion – or the non-religious – feel. Sullivan is concerned about individual rights and the infringement of those rights by conventional majorities. She says she supports the ERA in theory but is willing to oppose it now, also in theory (as it has already failed) because it is not the right “type” of amendment, but what she is actually privileging is the current constitutional regime. Under the current regime, it is relatively easy for judges to “uncover” new rights but very difficult to curtail old ones. Judges are bound by precedent, and are unlikely to change prior rulings unless they are subject to the kind of societal pressure mentioned by Strauss. This creates a system whereby as society becomes more accepting, so do judicial rulings. A constitutional amendment, however, does not change in the same way, barring aforementioned broad interpretation by the judiciary, of course. Thus a “temporary” but changing conservative dynamic could theoretically “lock in” an undesirable restriction off rights that judges could not overturn – barring a basic structure doctrine or other theory of unconstitutional constitutional amendments. (Mate, 2014, p. 453). One can certainly envision a situation where a theoretical Kathleen Sullivan might have a different opinion – in a society trending conservative where the judiciary was in the business of curtailing individual rights, like in the period after the Civil War, one might imagine she’d prefer a system of more broad Constitutional change.
Or perhaps not. The civil war spurred a large rash of constitutional amendments, yet they did not have true effect until almost a hundred years later – and perhaps arguably not even then, as voter ID laws and the drug war continue to disenfranchise those groups the civil war amendments were meant to protect. Strauss’s argument that amendments are irrelevant and it is only societal pressure that matters – at least under our system – perhaps looks more and more true and vindicated. Following Strauss’s argument, one can reach one of two conclusions – either that because amendments are irrelevant, it does not matter whether the U.S. Constitution is easy to amend or not, because the amendments don’t matter, or that the amendment process must become easier, so that Amendments can occur more often and be more responsive to political realities, better reflect popular sovereignty, and become the primary means of enacting Constitutional change instead of informal amendment. To the degree Strauss is being prescriptive instead of merely descriptive, I think the second interpretation is perhaps more true to his intent, but both arguments have some merit.
I would argue, however, that Strauss is not wholly correct – and that Sullivan is, in fact, wrong to cede the ERA as a lost cause. Denning and Vile argue in their response article on many different fronts for the relevance of Constitutional amendments, but there is one or two functions which I find particularly persuasive. (Vile & Denning, The Relevance of Constitutional Amendments, 2002, pp. 278-79). They refer to them separately as the legitimization and publicity function of amendments, but I would prefer to wrap them together as one as the “expressive” function. Essentially, by amending the constitution to contain specific words delimiting some concept, we are privileging that concept – saying that not only is this something that is the case in our society, but this is something of the utmost importance. It is at least arguably the case that women have equal rights in America, but had the ERA been passed it would not merely be the case, it would in fact be a constitutional guaranteed right. Even if that does not change the actual interpretation of the law today, it serves as sending a message to both lawmakers and the general public about what our societal values are. While it is difficult to make a counterfactual argument, I would say that this is in fact the primary function of amendments, and that while certain amendments – like the 14th – did not seem to have an immediate effect, and discrimination against African Americans in that case continued on unabated (or maybe just a little abated) it had the expressive effect which ultimately affected how Americans viewed our society and lead eventually to the civil rights movement, by giving us the standard to espouse and rally under. To see these political changes as inevitable without the expressive function of amendments may be convenient, but it is not necessarily – or even likely to be – correct. If they were inevitable, why did they not happen everywhere simultaneously? What values a society enshrines in its primary law document helps to shape that society as a whole over time even if the immediate practical effect of such might be minimal.
That still leaves the question, of course – is the United States Constitution too difficult to amend? My answer, at least, must be a qualified one either way. While Akhil Amar’s appeal to popular sovereignty is appealing philosophically, over time I think the importance of federalism and popular democracy has waned. When the Constitution was first written, it was a revolutionary document. Few other countries – perhaps arguably none – had such sweeping limitations on governmental power and preservation of popular democracy. And for the first seventy years of our country’s history, those limits if anything became even more pronounced.
But now the primary issue our society has to deal with is not that of an overweening federal government against the states or sovereign people it rules, at least in my opinion. Rather, it is of an oppressive majority who want to normalize society and the government. While those interests can overlap, they do not always, as granting unlimited popular sovereignty as Amar advocates may solves the first problem but exacerbates the second. Starting with the fourteenth amendment, our Constitution began to take on a new nature, protecting not merely the People as a whole but individuals against oppression of any source, be it the federal government, the states, or the People themselves.
Contrary to Amar, I think that the Constitution is a binding contract on those who choose to be governed by it. While it can theoretically be thrown off by popular will, unlike Amar I would contest it cannot be done constitutionally. Such an act would not be constitutional, it would be revolutionary. As long as we agree to be bound by the Constitution, we are bound to act within it – which means no popular amendments, but instead use of article 5, which guarantees the rights of the minority against majoritarian oppression.
So, at least as far as the current primary function of a constitution, I align more with Sullivan, which colors my views on whether the Constitution is too difficult to amend. In addition, for all the other flaws in her argument, that Sullivan has it right to mention stability. For whatever else you may think about the US Constitution, it has worked – America has risen to become the preeminent country in the world (arguably) and a bastion (among many other countries, of course) of rights and freedoms. Is this because of the obduracy of its Constitution? Is it because the American Constitution just started off better than those of other countries? Is it just luck of the draw, being in the right place at the right time? It is difficult to say, but given the history of Constitutionalism in other countries, I am inclined to credit the Constitution – and its obduracy – with at least some influence. I think it is the pinnacle of arrogance to think that the current generation necessarily has better ideas for running the country than what has come before or what might come after, and one should be careful both not to throw away the past nor bind the hands of the future. While one could perhaps argue that that is precisely what the founding fathers did more than two centuries ago, the difference lies in that our hands have been bound now for two centuries, and the bindings have proven not overly onerous – perhaps even better than being unbound.
But there are certainly some flaws with our rigid constitution. The extreme latitude afforded to the court is necessary due to the rigidity of the amendment process – without it, political change would stagnate and probably the system itself would give way to revolution. Pressure can only hold for so long. But it has led to some evils, both procedural and substantive. The constant creation or “uncovering” of new rights is methodologically troublesome and messy, relying solely on individual and personal judgment and discretion and beliefs. The fact I may agree with these discovered rights does not change the fact that the way the courts reach those decisions has become incoherent and unpersuasive. Amendments which formally recognize rights to privacy, voting, equal rights, and other common issues would be much better served by the expressive function of amendments than the wishy-washy and weakly founded arguments of judges – but it is clear with our current system of amendment that these expressive amendments will not and cannot be passed, regardless of public support. This has also allowed for perversion of traditional interpretations of amendment, such as the first amendment to cover corporate political spending as free speech and the second amendment to cover personal gun ownership. Easier amendment laws arguably could correct those miss-steps, or at the very least, if society prefers the new interpretations, clarify the boundaries of these so-called rights rather than leaving it to the unclear machinations of a group of small elites.
I also think that our perception of the US Constitution as too difficult to amend may be colored by our current history and politics. We are in a period of unprecedented political obstruction where very little gets done at any level of the government – with the arguable exceptions of the judiciary and perhaps executive orders. It may be impossible to amend the Constitution now, but has that always been the case? And more importantly, will it always be the case? It seems to me, historically, that the Constitution has been amended at very important historical junctures – and that while not every juncture was necessarily marked by the appropriate amendments (the New Deal and the civil rights movement being the big modern examples) one should not reasonably expect new amendments when great crises are not afoot. I am sure some war hawks might like to compare the War on Terror with great crises of the nation in the past, or some conservatives the rise of the Obama tyranny with the threat of the civil war, or other similar pomposities, but fundamentally it may simply be the case that the Constitution is currently unamendable because it does not currently need to be amended. When we are facing a truly dangerous crisis that the Constitution must bend or it will break, then the political clout necessary to make changes will become available. As flawed as much of her argument is, I think Sullivan may have the right of it here when she points to the proper time – if not the proper format – for amendments – rarely, and only times of great need; reluctantly, and only as a last resort. (Sullivan, 1996, p. 694).
So you might be wondering if I am actually going to answer the question definitively instead of just vacillating between two opposing viewpoints.
The United States Constitution has functioned extremely well under its current system, and any calls to make it significantly easier to amend are, to my mind, ill advised. That being said, the current system has some visible flaws in an over-reliance on a judiciary with theoretically unlimited discretion to change the Constitution as it sees fit, and paring down their interpretive role by opening up alternate avenues of Constitutional amendment might be prudent. Namely, I think the issue is not that the Constitution is too difficult to amend, but rather I think the problem lies in who is allowed to do the amending. The current system as implemented requires Congress to propose amendments. While in theory states can propose amendments through calling a Constitutional Convention, this has never happened and could arguably be said to be defunct. (Vile, Different Kinds of Conventions, forthcoming, p. 2).
I think that most – perhaps all – political actors should have some methodology for proposing Constitutional amendments. Here it is perhaps useful to clarify terminology – when I say proposing I by no means want to be construed as indicating ratifying. I think the current system of ratification – 75% of the states – is in fact a good method of ensuring broad consensus, and I would not want to tinker with that for fear of undermining its virtue of protecting minority rights. But allowing more methods of getting to that part of the process serves both an Amarian and Sullivanian perception of the proper function of a constitution – by allowing as many actors as possible a say in possible amendments, thus empowering “the People” to have their voices heard, but only allowing changes on a broad consensus, thus protecting those without terribly loud voices. For a start, I would suggest allowing the President elected to a second term to propose a single Constitutional amendment, which then would need to be ratified by the states. Likewise I would suggest that the Supreme Court be allowed to propose amendments unanimously – that is, only if all 9 members sign on.
Finally, I think there should be some popular methodology for proposing amendments – for instance, if some percentage of states vote popular referenda proposing an amendment, it goes forward for ratification. All these ideas are in their infancy, and may need further refinement, but fundamentally they point to where I think the problem lies – not in how easy it is to amend, per se, but how difficult it is to start a real, effective discussion among political actors about amending the Constitution.
Suggested Citation: Theodore Tibbitts, Is the United States Constitution Too Difficult to Amend?, Int’l J. Const. L. Blog, Mar. 10, 2015, at: http://www.iconnectblog.com/2015/03/is-the-united-states-constitution-too-difficult-to-amend-tibbitts
Amar, A. (1995). Popular Sovereignty and Constitutional Amendment. In S. Levinson (Ed.), Responding to Imperfection: The Theory and Practice of Constitutional Amendment. Princeton: Princeton University Press.
Mate, M. (2014). State Constitutions and the Basic Structure Doctrine. Columbia Human Rights Law Review, 45(2), 441-498.
Orfield, L. (1942). The Amending of the Federal Constitution. Ann Arbor: University of Michigan Press.
Strauss, D. (2001). The Irrelevance of Constitutional Amendments. Harvard Law Review, 114, 1458-1505.
Sullivan, K. (1996). Constitutional Constancy: Why Congress Should Cure Itself of Amendment Fever. Cardozo Law Review, 691-704.
Vile, J. (2013). Constitutional Revision in the United States of America. In E. C. Change, & X. Contiades (Ed.). Routledge.
Vile, J. (forthcoming). Different Kinds of Conventions.
Vile, J., & Denning, B. (2002). The Relevance of Constitutional Amendments. Tulane Law Review, 77, 247-282.