[Editor’s Note: In this special installment of I•CONnect’s Article Review Series, Reijer Passchier reviews Vicki Jackson‘s article on The (myth of un)amendability of the US Constitution and the democratic component of constitutionalism, which appears in the current issue of I•CON. The full article is available for free here.]
Review by Reijer Passchier
–Reijer Passchier, PhD Candidate at Leiden University Law School
In recent decades, a significant number of American political and constitutional actors have come to believe that it is no longer practically possible to use the US Constitution’s Article V amendment procedure as an instrument of constitutional change. Requiring the consent of two-thirds of both Houses of Congress and three-fourths of the states’ legislatures, Article V would be impermeable in modern times. Some have celebrated this extreme formal rigidity, as textual ‘veneration’ would promote such things as stability, coherency and the rule of law. Others have found it hard to see how popular consent can be invoked on behalf of a de facto unamendable constitution, adopted by a generation long since dead.
In a fascinating article recently published in ICON (‘The (myth of un)amendability of the US Constitution and the democratic component of constitutionalism’), Vicki Jackson, Professor of constitutional law at Harvard Law School, re-examines these empirical and normative claims about the US constitutional amendment process.
In this Review, I situate the significance of Professor Jackson’s article and offer a few comments in response.
First of all, Professor Jackson seeks to debunk, what she regards, the ‘myth’ of the unamendability of the US Constitution. She argues that the difficulties imposed by the qualified requirements of Article V are often overstated. Rather than indicating practical unamendabillity, history would suggest that textual additions to the American constitutional document can pass with ‘amazing speed’. She notes, for example, that the 26th amendment, changing the voting age to 18, was ratified three months after it was proposed. Next, Jackson dismisses the often articulated idea that the states are a major hurdle for textual change, considering that of the thirty-three amendments that have been proposed by Congress only six have failed to be enacted. Moreover, she suggests that the difficulty of passing Congress should not be overestimated, as congressional overrides of the presidential veto – which require a similar two-thirds majority vote in both Houses – have not been rare at all.
Secondly, Jackson provides an alternative explanation for the extraordinary low amendment rate of the US Constitution. Extreme amendment difficulty has not so much resulted from formal procedures, Jackson argues, but mainly from exaggerated estimates of their difficulty as well as from cultural persistence against amending the Constitution. Overstatement of amendment difficulty would have become ‘self-fulfilling’. And, together with normative opposition against ‘tinkering’ with the constitutional text, the socio-cultural perceptions of amendment difficulty would have become ‘even more self-fulfilling’. The perceived difficulty and the normative arguments against constitutional amendment, in Jackson’s words, ‘may reinforce each other in an overall cultural message: whatever you do, don’t amend the Constitution.’
Thirdly, Jackson turns to normative arguments about formal amendment more directly. She contends that arguments supporting a strong presumption against resorting to formal amendment urge for caution. But the difficult hurdles for the amendment of the US Constitution are, as Jackson notes, ‘likely to stand as obstacles to the kind of frequent amendment or, ‘cluttering’ that might pose real threats to either stability or the rule of law’. She then argues that – although ‘the legitimacy of judiciary is beyond question at this point in the United States’ – judicial interpretation cannot fully substitute the more active forms of public consent associated with the formal amendment process. Therefore she ultimately believes that ‘a constitution that was truly not amendable by the formal methods that it provides for popular input […] would be inconsistent with democratic constitutionalism’.
Jackson concludes that the Article V amendment mechanism should not be rejected as a means for legal change. Especially in the US context, this may ‘place simply too much weight on judicial appointments and the adjudicative process as mechanisms to prove appropriate amounts of constitutional flexibility and change’.
Jackson’s line of reasoning is novel and the implications of it deserve sustained scholarly attention. I have only space to make three brief comments.
Firstly, I would note that Jackson seriously challenges some common assumptions about the difficulty of constitutional amendment in the US. Especially striking is her observation that the consent of three-fourths of the states’ legislature does not actually seem to have caused too much trouble to those who have sought formal amendment. However, I do not believe that Jackson’s reference to the few amendments that have been adopted relatively quickly actually falsifies the unamendability thesis. As I understand it, this thesis is not about the practical impossibility of amendment per se, but about the impossibility of bringing about textual additions with ‘regard to anything truly important’ (Cf. Sanford Levinson). Indeed, the majority of the 27 formal amendments to the US Constitution, especially the more recent ones, have been of relatively minor significance. Great American constitutional developments of the 20th century are not reflected in the list of amendments to the US Constitution at all. What’s more, attempts to regulate major constitutional reforms, such as those associated with the New Deal, the Civil Rights Revolution and the emancipation of women, by way of formal amendment have hopelessly failed. Instead, these reforms have – seemingly out of necessity – been engineered by the use of (multiple) alternative means of constitutional change, such as judicial decisions and ordinary statutes. Moreover, I do not think that looking to the analogous two-thirds requirement in both Houses of Congress for overriding presidential vetoes proves anything with regard to the difficulty of acquiring the same approval for constitutional amendments: overriding a presidential veto seems much easier than agreeing upon a specific text that is to be added to the solemn constitutional document.
Secondly, I find Jackson’s alternative explanation of amendment difficulty in the US today extremely helpful. I share her assertion that the perceived difficulty of formal amendment and the strong American habit of textual ‘veneration’ may significantly reinforce the sense of futility in trying to amend the Constitution. However, I also suspect that, with regard to these socio-cultural beliefs, Jackson overestimates the difficulties imposed this time herself. Despite an apparently strong cultural persistence against resorting to formal amendment, each year hundreds of amendments are proposed in Congress (more than 11,000 have been proposed in total). Admittedly, not all these proposals seem serious attempts to bring about textual constitutional change. Yet the number of proposals at least indicates that amendment is no taboo in American politics. Moreover, despite the (perceived) near impermeability of Article V, many groups vigorously campaign for formal constitutional change. Indeed, the history of the last – 27th – amendment indicates that such groups do actually make a change: this amendment was notably adopted after a letter-writing campaign started by Gregory Watson, at that time an undergraduate student at the University of Texas at Austin.
Lastly, I would note that I learned a lot from Jackson’s discussion of normative arguments about formal amendment. Her approach is much nuanced, as she weighs both arguments for and against resort to the Article V constitutional law-making track. I have particularly benefited from her discussion on the question whether judicial interpretation can functionally substitute the amendment process. Indeed, especially in the US this question is interesting since hardly any other high court in the world plays such a prominent constitutional role while at the same time relying on indefinitely long tenures for its judges. I fully agree with Jackson’s view that over-reliance on judicial interpretation as a means of constitutional adaptation undervalues the importance of more active forms of public deliberation that can only be guaranteed by a (reasonably passable) formal constitutional amendment track. However, I would criticise Jackson for taking a too narrow perspective. Indeed, judicial interpretation is only one alternative source of constitutional change, and presumably not even the most important: in the welfare and national security state, changes brought about by way of statutes and governmental practices seem to have been much more significant. I would be extremely curious to know the implications of Jackson’s normative arguments for these, more informal, mechanisms of constitutional transformation.
To conclude: Jackson has seriously challenged conventional wisdom with regard to amending the US Constitution. Although I have offered some critical comments, I hope I have also demonstrated that her article is provocative and extremely interesting. She has shed new light upon important questions surrounding American processes of constitutional change.
Suggested Citation: Reijer Passchier, Review of Vicki Jackson’s “The (myth of un)amendability of the US Constitution and the democratic component of constitutionalism”, Int’l J. Const. L. Blog, Nov. 17, 2015, at: http://www.iconnectblog.com/2015/11/article-review-reijer-passchier-on-vicki-jacksons-the-myth-of-unamendability-of-the-us-constitution-and-the-democratic-component-of-constitutionalism
 Because I have only 1250 words, I will not discuss Jackson’s – highly interesting – comparative reflections.
 Sanford Levinson, Framed: America’s 51 Constitution and the Crisis of Governance, (New York: Oxford University Press 2012) at 338.