Most things Congress might do this year can be undone by the next election. Amendments to the United States Constitution cannot. Yet more constitutional amendment proposals are undergoing serious consideration in Congress at the moment than at any time in recent memory. After failing by only one vote to pass a balanced budget amendment proposal last March, Congress has gone on to consider a rash of proposed amendments that would impose congressional term limits, authorize laws against flag burning, give the president a line-item veto, abolish the electoral college, outlaw abortion, prohibit remedial school busing, and authorize school prayer, to name a few. Taken together, these proposed amendments add up to the biggest call for constitutional revisionism since opponents of abortion, school busing, and restrictions on school prayer tried to launch a constitutional convention back in the 1970s and 1980s. Those efforts failed, and the Consti tution has remained untouched for several decades. But the prospect of constitutional amendment is suddenly a live political possibility. If any of the current crop of amendments is enacted, it will be embedded in the Constitution for years to come.
Our Constitution is extraordinarily difficult to amend. Article V of the Constitution provides two routes, but both both require large supermajorities. First, Congress may propose amendments by a two-thirds vote of both houses. Second, the legislatures of two-thirds of the states may request that Congress call a constitutional convention. Amendments proposed by either route become valid only when ratified by three-fourths of the states. Once an amendment clears these hurdles into the Constitution, it is equally difficult to remove. The amendment that imposed Prohibition is the only one in our history ever to be repealed.
The Constitution thus remains a remarkably pristine document. More than 11,000 amendments have been proposed, but only 33 have received the necessary congressional supermajorities and only 27 have been ratified by the states. Half of these amendments were enacted under extraordinary circumstances. The first ten amendments, the Bill of Rights, were added in one fell swoop by the First Congress and ratified in 1791 as part of a bargain that had induced reluctant states to ratify the Constitution. And the 13th, 14th, and 15th Amendments, which abolished slavery and gave African Americans rights of equal citizenship, were essentially foisted on the southern states by the Reconstruction Congress as a condition of readmission to the union in the wake of the Civil War.
The remaining amendments have tinkered little with the original constitutional design. Four expanded the right to vote in federal elections: The 15th Amendment eliminated racial classifications in voting, the 19th extended the franchise to women, the 24th abolished the poll tax, and the 26th lowered the voting age. Only two tried outright to govern social policy: The 18th Amendment imposed Prohibition and the 21st repealed it. Only two amendments worked significant structural changes in the original constitutional framework: The 17th Amendment provided for popular election of senators and the 22nd imposed a two-term limit on the presidency. And only four amendments were enacted to overrule decisions of the Supreme Court: The 11th Amendment barred suits in federal court by citizens of one state against another state, the 14th recognized the United States citizenship of African Americans, the 16th permitted Congress to impose an income tax, and the 26th lowered the voting age to 18--all in contrast to what the Supreme Court had said the Constitution permitted or required. The remaining handful of amendments were national housekeeping measures, the most important of which was the 25th Amendment's establishment of procedures for presidential succession.
Nearly a quarter of a century has elapsed since a constitutional amendment emerged successfully from the Congress. A 1978 D.C. statehood proposal emerged but was never ratified by the states. The last amendment to emerge from Congress and be ratified was the 26th Amendment, which lowered the voting age in 1971. The most recent amendment--the 27th, which bars congressional pay raises until after the subsequent election--is actually a relic of the founding era. Proposed by the First Congress in 1789, it was finally ratified and promulgated only in 1992. We have never had a constitutional convention.
A SUDDEN RASH
Against this sparse backdrop, the current proliferation of proposed constitutional amendments is striking. Since the November 1994 elections, three proposed constitutional amendments have already reached the floor of at least one house of Congress. A balanced budget amendment passed in the House but fell one vote short in the Senate last March. An amendment that would have imposed congressional term limits likewise failed on the floor of the House in March. But in June, the House passed, by a vote of 312-120, an amendment authorizing Congress and the states to prohibit flag desecration. The Senate Judiciary Committee voted out that amendment last month and it now heads to the Senate floor. Other proposed constitutional amendments are in the pipeline, including a proposed "religious equality" amendment on which a House Judiciary subcommittee has held hearings. The leading draft of that amendment would require greater inclusion of religious expression in public settings and allow "public or ceremonial accommodation of religious heritage, beliefs, or traditions."
Some of these amendment proposals have been resurrected from death in earlier Congresses. The balanced budget amendment, for example, failed by comfortable margins in Congress after Congress until it went down this year in a squeaker. The flag desecration amendment that might succeed this year was narrowly averted in 1992 when the Democratic leadership managed to get Congress to pass a flag protection statute, which the Supreme Court promptly struck down as violating the First Amendment. Other amendments in this year's crop are newer. For example, the term limits amendment reflects relatively recent anti-incumbent fever also manifest in the decisions of 23 states since 1990 to enact congressional term limits by popular initiative--which were struck down by the Supreme Court last May as unconstitutional. And the draft religious equality amendment is a newer and more sophisticated version of older proposals that simply would have reinstated school prayer.
This rash of amendment proposals is cause for alarm, even apart from any of their individual merits. For there are strong structural reasons for amending the Constitution only reluctantly and as a last resort. This strong presumption against constitutional amendment has been bedrock in our constitutional history, and there is no good reason for overturning it now.
Proponents of the current wave of amendments suggest that it simply represents the appropriate product of a mobilized citizenry exercising popular sovereignty. We the People created the Constitution and, they imply, We the People are free to rewrite it as We please. Amendment advocates could, if they wished, cite Thomas Jefferson in their cause. Jefferson wrote in an 1816 letter, "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." But, he urged, one should not "believe that one generation is not as capable as another of taking care of itself, and of ordering its own affairs." As Jefferson had put it years earlier in a letter to James Madison, "I hold that a little rebellion now and then is a good thing."
WHY WE SHOULD QUELL THE FEVER
Constitutional idolatry, of course, is not an attractive organizing principle. But Jefferson's position lost out in our constitutional history for good reasons that do not depend on fetishizing the Constitution or treating it as mystically sacred. A brief recap of these reasons will help show why the Congress's current amendment fever is misguided.
1. Stability. James Madison, one of the principal architects of Article V, disagreed with Jefferson. In Madison's view, "a little rebellion now and then" is to be avoided. To be sure, Madison acknowledged in Federalist No. 43 that "useful alterations will be suggested by experience," and that amending the Constitution must not be made so difficult as to "perpetuate its discovered faults." But Madison cautioned too "against that extreme facility" of constitutional amendment "which would render the Constitution too mutable." Implicit in this caution is the view that stability is a key virtue of a Constitution, and that excessive "mutability" would thus undercut the whole point of having a Constitution in the first place. As Chief Justice John Marshall put the point similarly in McCulloch v. Maryland, the Constitution is "intended to endure for ages to come." Keeping amendment relatively infrequent thus preserves public confidence in the stability of the basic constitutional structure.
While the Framers had to take the argument from stability on faith, the argument looks stronger two centuries later. The relative success of the American constitutional regime, one bloody civil war excepted, supports arguments along the lines of "if it ain't broke don't fix it." Our spare Constitution has withstood the test of time. Anyone with a Burkean trust in the collective wisdom embodied in custom and tradition ought to be wary of a sudden shift to rapid constitutional revision.
2. The Rule of Law. The very idea of a constitution turns on the separation of the legal and the political realms. The Constitution sets up the framework of government. It also sets forth a few fundamental political ideals (equality, representation, individual liberties) that place limits on how far any short-term majority may go. This is our higher law. All the rest is left to politics. Those who lose in the short run of ordinary politics obey the winners out of respect for the long-run rules and boundaries set forth in the Constitution. Without such respect for the constitutional framework, the peaceful operation of ordinary politics would degenerate into fractious war.
Frequent constitutional amendment can be expected to undermine this respect by breaking down the boundary between law and politics. The more you amend the Constitution, the more it seems like ordinary legislation. And the more the Constitution is cluttered up with specific regulatory directives, the less it looks like a fundamental charter of government. Picture the Ten Commandments with a few parking regulations thrown in.
This is why opponents of new amendments often argue that they would tend to trivialize or politicize the Constitution. They trivialize it in the sense that they clutter it up and diminish its fundamentality. Consider the experience of the state constitutions. Most state constitutions are amendable by simple majority, including by popular initiative and referendum. While the federal Constitution has been amended only 27 times in over 200 years, the fifty state constitutions have had a total of nearly 6,000 amendments added to them. They have thus taken on what Marshall called in McCulloch "the prolixity of a legal code"--a vice he praised the federal Constitution for avoiding. Many of these state constitutional amendments are products of pure interest-group politics. State constitutions thus are difficult to distinguish from general state legislation, and they water down the notion of fundamental rights in the process: The California constitution, for example, protects not only the right to speak but also the right to fish.
Amendments politicize a constitution to the extent that they embed in it a controversial substantive choice. Here the experience of Prohibition is instructive: The only modern amendment to enact a social policy into the Constitution, it is also the only modern amendment to have been repealed. Amendments that embody a specific and controversial social or economic policy allow one generation to tie the hands of another, entrenching approaches that ought to be revisable in the crucible of ordinary politics. The balanced budget amendment, for example, would enshrine, for the first time in our history, a particular and highly contestable macroeconomic policy--no deficit spend ing--in the Const i tution. As Justice Oliver Wendell Holmes cautioned early in the century, however, the Constitution ought not "embody a particular economic theory," whether that of Milton Friedman or John Maynard Keynes.
3. Coherence. The Constitution was drafted as a whole at Philadelphia. The Framers had to think about how the whole thing fit together. Amendments, in contrast, are passed piecemeal. In passing a single amendment in response to some particular felt necessity of the time, the nation may easily overlook or ignore some inconsistency or tension between the amendment and the basic structure. And such inconsistencies may have the unintended consequence of undermining the unity and coherence of the document as a whole, destabilizing structures or rights we have taken for granted.
Take the balanced budget amendment, for example. That amendment, if passed, would alter fundamentally the original constitutional framework for taxing, borrowing, and spending by imposing supermajority provisions that in effect would shift power from congressional majorities to minorities.
How would this work? Article I of the Constitution gives Congress the power to tax and spend for the common defense and general welfare, and to borrow money on the credit of the United States--all by simple majorities. So basic is the majoritarian premise of Article I that it is barely mentioned, except for the statement in Article I that "a majority of each [house] shall constitute a Quorum to do business." The Constitution contains only five exceptions to the majority-rule principle, and all fall outside the realm of ordinary legislation: It takes two-thirds of the Senate to convict officers tried on impeachment, two-thirds of either house to expel one of its own members, two-thirds of each house to override a presidential veto, two-thirds of the Senate to approve treaties, and two- thirds of both houses to propose a constitutional amendment--all extraordinary situations implicating either individual rights or interbranch or intergenerational checks and balances.
The Framers considered but rejected proposals for requiring supermajorities to pass ordinary legislation. As Madison wrote in Federalist No. 58, if "more than a majority" were required for a legislative decision, then "in all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would be no longer the majority that would rule: the power would be transferred to the minority."
The balanced budget amendment that came within one vote of passing last March (and will likely come up again) ignored Madison's warning by imposing, for the first time, a set of supermajority rules upon ordinary policymaking within the legislative branch. Specifically, it would require that deficit spending and increases in the statutory debt limit be approved by three-fifths of the whole number of each house. And it would require that tax increases be authorized by a majority of the whole number of each house rather than, as is usual, by the majority of members present. As Madison pointed out in Federalist No. 58, the danger of such supermajority requirements in the context of ordinary legislation is that a minority of each house can hold the legislative agenda hostage, blocking majority choices until the minority factions obtain the policy concessions they want. As Madison put it, the minority thus may "extort unreasonable indulgences" from the majority.
The balanced budget amendment is thus incompatible with the original legislative regime set forth in the Constitution. It would not merely call for reducing the deficit; it would also impose supermajority requirements conferring minority veto power that could alter significantly the distribution of any cuts. Ironically, it would help preserve pork in a future Congress where that is the price for the additional votes to achieve a supermajority. True, Congress has some supermajority requirements in its own rules. The Senate requires 60 votes to end a filibuster, and the House recently adopted a three-fifths voting rule for tax increases that has been challenged in court. But these rules are no precedent for the balanced budget amendment. Article I permits each house to "determine the Rules of its Proceedings," and such internal supermajority rules may be adopted or repealed by mere majority vote. Supermajority requirements in a constitutional amendment, in contrast, would require another constitutional amendment to undo. Thus the balanced budget amendment would introduce a unique and unprecedented alteration of the democratic process. And that alteration might have spillover effects on the way that other legislative business is conducted. Once acquired, the habit of exercising minority vetoes might be hard to break.
As a second illustration of the problem of amendments inconsistent with the Constitution, consider the flag desecration amendment that will go to the states for ratification if the Senate approves it this fall. The First Amendment forbids Congress from abridging the freedom of speech. The flag amendment would permit Congress and the states to prohibit "desecration" of the flag. Now it's hard to see the flag as anything but a symbol. And it's hard to see its "desecration" as anything but a form of symbolic expression too. If "flag desecration" is not to be construed absurdly as applying to people who get mustard on their flag napkins on the Fourth of July, it will apply only to symbolic protestors who desecrate flags in order to express what others deem to be unpatriotic sentiments. And if that's the case, flag desecration laws passed under the authority of the amendment would quite literally abridge the freedom of (symbolic) speech. For just these reasons, the Supreme Court struck down as unconstitutional both a Texas flag desecration law and Congress's Flag Protection Act of 1992.
If the flag desecration amendment were to pass, it would not only overrule these two decisions of the Court, but would also for the first time ever amend the original Bill of Rights. In effect it would hold that "Congress may not abridge the freedom of speech, except for flag burning." Once embedded in the Constitution, the amendment might lead to other arguments by analogy: If flag burning is not protected speech, why protect wearing a jacket that says "Fuck the Draft"? Or a rap recording with a refrain "Kill the Pigs"? Chief Justice Rehnquist, in dissent from the Court's flag burning decisions, called flag burning the "inarticulate" equivalent of a "grunt or roar." But much of the offensive speech the Court has long protected is hardly more articulate or elegant. It is possible that courts would treat flag desecration as sui generis, confining the amendment to its terms. But it is also possible that the amendment would have unintended spillover effects on other speech contexts, altering the habits of mind that had led courts presumptively to strike down all abridgements of speech.
The proposed religious equality amendment would likewise amend the Bill of Rights if enacted. This amendment would bar government from prohibiting "prayer or other religious expression in circumstances in which expression of a nonreligious character would be permitted," treating this as discrimination against religion. To be sure, the original First Amendment protects the free exercise of religion. But it also bars government from establishing religion. The Establishment Clause is unique; there is no issue other than religion on which government is barred from taking an official position. Thus the original Constitution required religion to be treated differently from activities "of a nonreligious character." The amendment would rewrite the First Amendment by requiring them to be treated the same. Proponents of the amendment suggest it would simply allow student-initiated, not government-mandated prayer. But as with the flag desecration amendment, courts would be free to extend the force of this amendment further than its proponents publicly contemplate.
Perhaps a properly enacted constitutional amendment cannot literally be unconstitutional. This would appear to be a contradiction in terms--although, to be sure, a few scholars have argued that some amendments would be so beyond the pale (imagine an amendment requiring racial apartheid) that the Court would have the power to strike them down as inconsistent with other constitutional provisions. But it is clear that amendments can cause tension with the original document, and may exert a gravitational force extending beyond their specific subject matter. This is at least an additional argument for keeping amendments to an essential minimum.
4. Generality. The Constitution is drafted in general terms. Both powers and rights are set forth in broad and open-ended language. To quote Marshall in McCulloch again, the Constitution by nature "requires, that only its great outlines should be marked," and its "minor ingredients" determined later through judicial interpretation. Hence the dilemma of drafting a constitutional amendment. It is against the nature of the Constitution to draft too specifically. As Marshall wrote in favor of his expansive reading of enumerated congressional powers, "It would have been an unwise attempt to provide, by immutable rules, for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur." Trying to write constitutional amendments that anticipate all later interpretation problems is surely folly. Picture the senators trying to find some exquisite phrase that will ensure that mustard-spattered flag napkins fall outside the reach of the flag desecration amendment.
On the other hand, drafting amendments in general terms is fraught with dangers of its own. A generally worded amendment may contain hidden threats to the overall constitutional structure just as grave as the overt conflicts discussed above, if not more so because they are less likely to be openly debated.
Again, recall the failed balanced budget amendment. The amendment provided in general terms that "[t]otal outlays for a fiscal year shall not exceed total receipts" without supermajority authorization. The amendment appeared by its terms to be self-enforcing in the Congress: "The Congress shall enforce and implement this article by appropriate legislation, which may rely on estimates of outlays and receipts." Invisible from the face of the amendment was its serious potential to involve the other two branches in fiscal controversies that Congress could not itself resolve.
Specifically, if Congress failed to balance a budget, the president could have deemed himself authorized under the amendment to impound funds that Congress had authorized and appropriated to specific programs, or to freeze federal wages and salaries--even though the amendment did not specifically confer such authority. This would have resurrected a power struggle between the president and Congress that was put to rest by statute during the Nixon administration. And even the potential for impoundment would have given the president greater leverage for arm-twisting in the Congress.
And although the proposed amendment is similarly silent on the question of judicial review, it has the clear potential to unleash a torrent of enforcement litigation in the courts. Taxpayers might claim that their right to a balanced budget is violated by a projection showing outlays to exceed receipts. Employees whose wages were frozen by the president might sue for back pay. Criminal defendants might seek to excuse themselves on the ground that outlays on law enforcement would exceed receipts, rendering the law under which they were charged unconstitutional. Any of these lawsuits would entangle the judicial branch in questions of economic measurement and prediction for which it is surely ill equipped.
These dangers prompted the Senate, at the eleventh hour, to adopt an amendment to the balanced budget amendment introduced by Senator Sam Nunn that would eliminate judicial review of controversies arising under the act. But it declined to adopt an amendment to the balanced budget amendment proposed by Senator Ted Kennedy that would have prohibited presidential impoundment. Thus even in its final form last March, the amendment proposed a redistribution of powers among the branches that would undermine the original assignment of the taxing, spending, and borrowing powers to the Congress.
5. The Role of the Court. How have we managed to survive more than 200 years of social and technological change with only 27 constitutional amendments? The answer is that we have granted broad interpretive latitude to the Supreme Court. Narrow construction would necessitate more frequent resort to formal constitutional amendments. Broad construction eliminates the need. Thus the Court has determined that eighteenth-century restrictions on searches of our "papers and effects" apply to our twentieth-century telephone calls, and that the command of equal protection forbids racially segregated schools even though such segregation was known to the 14th Amendment's framers. Neither of these decisions--Katz v. United States and Brown v. Board of Education--required a constitutional amendment.
Nor did the Court's "switch in time that saved nine" during the New Deal. In the early twentieth century, the Court struck down much federal economic legislation as exceeding Congress's power and invading the province of the states. Under President Roosevelt's threat to expand and pack the Court, the Court desisted, and started to defer to all legislation bearing some plausible relationship to interstate commerce. Some scholars have called the Court's decision to defer to national economic legislation revolutionary enough to count as an informal constitutional amendment, but most view it as within the broad contours of reasonable interpretive practice.
Increasing the frequency of constitutional amendment would undermine the respect and legitimacy the Court now enjoys in this interpretive role. This danger is especially acute in the case of proposed constitutional amendments that would literally overturn Supreme Court decisions, such as amendments that would declare a fetus a person with a right to life, permit punishment of flag burning, or authorize school prayer. Such amendments suggest that if you don't like a Court decision, you mobilize to overturn it.
Justice Jackson once quipped that the Court's word is not final because infallible but infallible because it is final. That finality, though, has many salutary social benefits. For example, it allows us to treat abortion-clinic bombers as terrorists rather than protesters. If every controversial Supreme Court decision resulted in plebiscitary overruling in the form of a constitutional amendment, surely the finality of its word would be undermined, and with it the social benefits of peaceful conflict resolution. The fact that we have amended the Constitution only four times in order to overrule the Supreme Court is worth remembering.
The Court itself has helped keep that number low by occasionally reinterpreting the Constitution in such a way as to obviate the need for a proposed amendment. For example, the equal rights amendment (ERA) passed by Congress and submitted to the states in 1972 would have provided that "equality of rights under the law shall not be denied or abridged on account of sex." In 1971, the Supreme Court had struck down a law preferring men over women as estate administrators as irrational. But by 1973, the Court imposed a stricter standard. In striking down a law giving wives of male military officers more automatic benefits than husbands of female officers, the Court suggested that sex discrimination is unconstitutional even if it has some rational basis. The pending ERA no doubt had an influence on the Court. But the more the Court struck down sex-discriminatory laws in the mid-1970s, the less need there was to ratify the amendment. Thirty-eight states never did ratify the ERA after all.
Something similar may be happening now in the shadow of the religious equality amendment. Last term, the Supreme Court for the first time upheld public funding of religious evangelism against Establishment Clause challenge. The University of Virginia had refused to disburse funds raised through a mandatory student activities fee to an avowedly Christian student magazine, on the ground that it was primarily religious. The university granted such funds to nonreligious student publications. The Court held by a vote of five to four that this selective exclusion violated the free speech clause and rejected the university's argument that including the Christian magazine would violate the Establishment Clause. Thus the Court did on its own what the religious equality amendment would require: entitle religious speech to equal access to public funds, despite decades of cases holding that religious proselytism may not be supported by any tax, large or small.
The Court itself, of course, can squander public respect and legitimacy by changing its interpretations of the Constitution so abruptly that they appear more politics than law. Justices O'Connor, Kennedy, and Souter rested their dramatic decision to reaffirm Roe v. Wade in the 1992 Casey case expressly on the need to avoid such appearances. Several decisions last term came closer to the kind of sea change Casey said the Court should avoid. First, the Court struck down an act of Congress--the Gun-Free School Zones Act--as exceeding Congress's power under the Commerce Clause for the first time since 1936. Second, the Court struck down state limits on congressional term limits by a vote of five to four, but only Justice Kennedy's swing vote with the majority prevented the conservative wing of the Court, led by Justice Thomas in dissent, from resuscitating a view of states' rights that most thought had been put to rest decisively by the South's defeat in the Civil War. Third, the Court overruled its own recent decision giving the federal government broader latitude than the states to enact affirmative action.
But the fact that the Court itself sometimes approaches the outer bounds of reasonable interpretive practices in no way strengthens the case for readier constitutional amendment. If anything, it cuts the other way: It illustrates the very pitfalls of constitutional mutability that amendment fever would exacerbate.
FIRST DO NO HARM
For all of these reasons, we should keep in force a strong presumption against amending the Constitution. That does not mean it should never be amended. The Constitution surely should be amended on occasion--for example, when changes consistent with its broad purposes are unlikely to be implemented by ordinary legislative means. The four amendments expanding the franchise are good examples--why should existing electors voluntarily dilute their own votes?
To their credit, advocates of some recently proposed amendments have argued that they are necessary to correct structural biases in ordinary legislation. For example, proponents of the balanced budget amendment have argued that budget self-discipline by Congress is unavailing, for it is too easy for current legislators to impose debt on future generations who are not now around to vote. And term limits amendment advocates have argued that the self-interest of congressmen in their own perpetual re-election makes it impossible to implement term limits by statutory means.
These are the right kind of arguments, but they are unpersuasive. If any group can be said to have virtual representation in the Congress, it is surely our own children and grandchildren. Recent polls showing the majority of the American public to be born-again deficit hawks suggest that the interests of future generations can be protected by ordinary political means, without the need to enact a constitutional amendment. And there are good reasons to reject term limits besides congressmen's individual self-interest. For example, Congress may be more captured with than without them, for legislators who know their tenure is limited may curry more rather than less favor with lobbyists in order to secure private employment later on, and inexperienced legislators may depend more rather than less on staff and special interests for guidance than experienced legislators need to do. Moreover, the political branches have not exhausted campaign finance reform or other legislative changes that would decrease entrenchment without resort to term limits. Thus the structural arguments against term limits are at least as powerful as those in their favor.
Many amendment-happy legislators, however, do not even bother to make such structural arguments for the necessity of their proposals. Perhaps they are merely grandstanding, while expecting to lose anyway in the supermajoritarian gauntlet Article V requires them to run. But to the extent they are serious, they should remember that it is a Constitution they are amending, and that they should not tinker with it lightly.
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