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We tend to see the Constitution as permanent and inviolable—but we’re always wild to change it
May/June 1995 | Volume 46, Issue 3
Six weeks into the 104th Congress, the balanced budget amendment (hereinafter BBA) that had passed the House almost made it through the trickier procedural shoals of the Senate with the two-thirds majority needed to propel it on to the state legislatures. The Senate majority leader promises he’ll bring it up for a later vote, so the BBA might yet become the twenty-eighth amendment to the Constitution—that is, the twenty-eighth change in our fundamental charter of national organization. What would that mean?
We already have put twenty-seven amendments on the books in a bit more than two centuries, an apparent average of one every seven and a half years, which would seem to show a fickle passion for change. But the average is deceiving. The amendments actually have come in separated clusters. The first ten, the Bill of Rights, were adopted in 1791, almost as soon as the new government got under way. They were promises fulfilled by the Federalists, who had made them to win ratification of the Constitution itself. To all intents and purposes they are part of the original. That leaves seventeen. For convenience, let us give them Roman numerals and consider their dates of adoption as the years in which they got the necessary total of ratifications by three-quarters of the states. Amendments XI and XII came early, in 1795 and 1804. (Wait, we’ll refresh your memory on what all the amendments provide for in a moment.) Then sixty years elapsed until XIII, XIV, and XV came on one another’s heels between 1865 and 1870. After that forty-three years slipped by with- out an amendment, until XVI through XIX were added between 1913 and 1920. In 1933, XX and XXI were added. Another eighteen years, and XXII was inscribed in 1951. There was a surge in the 1960s, with XXIII through XXV ratified between 1961 and 1967 and XXVI coming close behind in 1971. Finally there was a long breather until XXVII, a remarkable one, joined the list. That happened only yesterday, in 1992.
But these modest numbers nowhere near represent the totals of proposed amendments. Thousands have been introduced in Congress but failed to win support—like one prohibiting flag burning and another that would have renamed us the United States of Earth. There are others that have been sent to the states but linger unratified in the absence of a stated time limit before automatic expiration. (The equal-rights and D.C.-statehood amendments had such limits and died for lack of ratification within them. But some proposed amendments that go back for decades, or even centuries, still exist in limbo. More of this anon.)
It is really very hard to change the Constitution by amendment, and the Founding Fathers, who still rank in my mind as the best political draftsmen of all time, meant it to be that way. They wanted to immunize the Constitution, the “fundamental” law, from gusts of popular passion that could put bad measures on the “ordinary” statute books compiled during legislative sessions. Most Americans agree with that idea of insulating the Constitution by lifting it to a special plane of reverence and permanence. But there is a paradox here, for if that is so, why should there be such a steady stream of proposed changes that fall by the wayside? Or, as the subtitle of a wonderfully interesting recent book called Amending America puts it, “If We Love the Constitution So Much, Why Do We Keep Trying to Change It?” Written by the constitutional historian Richard B. Bernstein in collaboration with Jerome Agel, Amending America is crammed with intriguing and detailed information on how, when, and why we have used the amending process contained in Article V of the Constitution and, more important, with very solid reflections on how, with or without formal revisions, the Constitution is constantly changing in the way it is applied and perceived by judges, lawmakers, and ordinary people.
It could hardly be otherwise. The Constitution could not have survived this long if we did not constantly recast the way we think about the meaning of those few pages of eighteenth-century parchment. They send different signals to different generations and sometimes are hotly debated within the same generation. The Civil War was fought by a North that saw the Constitution as an irrevocable (and pre-Gingrich) contract between the American people and their self-created government and by a South that believed it to be the charter of a league of states, with any member free to leave. The Northern view won, and the victors’ heirs subsequently re-imagined the Constitution as the charter of an industrial nation, a welfare state, a world power. Behind the literal reading of the text was, and is, a mobile “unwritten” Constitution.
So why, then—and particularly when —do we make formal connections to the charter in the form of amendments? The answer seems to be that it happens when a strong public mood lingers long enough to demand a change that is presumably permanent, that goes beyond the reach of repeal in the sausage factories of ordinary legislation and will also survive challenges in the Supreme Court. But something else too: a change that makes a statement to the world and to posterity about what governmental principles we most cherish, a kind of political symbol of who we think we are and ought to be.
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.