Amending America


You can trace this out in the history of the various bouts of amendment fever. Amendment XI was passed in 1795 in an America universally loyal to States’ Rights, which was shocked when a South Carolina citizen’s executor sued Georgia in the Supreme Court and won. The amendment thereafter forbade suits against a state by citizens of another. Amendment XII, providing for the separate election of the President and Vice President, was a reaction to the 1800 electoral-college tie between Jefferson and Burr, a “fix” of an unanticipated problem.

The post-Civil War amendments ended slavery but, more significant, sealed nationalism’s battlefield victory by making U.S. citizenship the source of equal rights and of protections that the states could not deny. Numbers XVI through XIX, providing for an income tax, the direct election of senators by the people, and women’s suffrage, were part of the Progressive drive to curb the power of corporations and political bosses and restore government to the keeping of a politically alert citizenry. Even the ill-fated XVIII—Prohibition—was endorsed by many Progressives, who were willing to try the experiment of guaranteeing a virtuous republic by mandating the particular virtue of temperance in the Constitution itself. (Some say that the BBA aims to do the same for the virtue of thrift.) Amendment XX, although not proposed until 1932, also fits the Progressive pattern. It ended the old custom of a “lame duck” Congress having an extra session after an election that might have thrown out many of its members. It was ratified in 1933, the same year in which XXI repealed Prohibition.

Amendments XXII and XXV (ratified in 1951 and 1967) reflect mid-twentieth-century concern with presidential succession, fed by the gigantic enlargement of the Executive Office. They limit a President to two terms and provide for his replacement in case of disability. Numbers XXIII, XXIV, and XXVI give the vote (in presidential elections) to the disenfranchised and predominantly black citizens of the District of Columbia, to men and women too poor to pay poll taxes or any other kinds of levy as a prerequisite to suffrage, and to eighteen-yearolds. These three sound the egalitarian strains of the 1960s status revolutions loudly and clearly.

Given the mood of this decade, we could wind up with a new cluster of amendments testifying to a wave of voter revulsion.

And so we come at last to the fascinating number XXVII—fascinating in both its curious history and its possible clues to the future. It provides that any pay raise that Congress votes for itself may not take effect until after another election, thus giving voters a chance to express their displeasure, if that is what they feel. This amendment was sent to the states in 1789 ! It languished for two centuries, still alive in the absence of provision to the contrary, until it was resurrected only a handful of years ago. It won swift approval from enough legislatures to reach the thirty-eight-state ratification threshold around the time of its 203d birthday.

What its passage shows is that rapping the knuckles of Congress is, in the 1990s, a quick and easy road to popular acclaim. Which brings us back to close the circle with a fresh look at the balanced-budget amendment. It is conceived in the same spirit as XXVII. Amendment XXVII supposedly keeps Congress from too easily being generous to itself. BBA would force Congress to be fiscally conservative with the public funds in general. The lineitem veto bill passed by the House in February of 1995 and state laws limiting congressional terms share elements of the same Congress-distrusting philosophy. If they should be successfully challenged and ruled unconstitutional, they might then become incorporated in proposed twenty-ninth and thirtieth amendments.

Given the mood of this decade, we could then wind up with a new cluster of amendments testifying to a new wave of revulsion among at least some voters against the national legislature and in some cases against government itself. It might only reflect the viewpoint of an activist minority, but it would be enough to do the job of reshaping the Constitution yet again.

I can’t help wondering what the Founding Fathers would have made of such a development. They believed that government should be limited, but they also saw it as necessary in a world of men rather than angels. Whatever they thought in 1787, however, they were willing to submit to the revision of future generations through the amending process. It’s still one of the best reasons to admire them.