Op-eds and Articles

Reclaiming the most powerful tool of reform: Constitutional amendments

By / 7.21.2014

At a time when observers across the political spectrum agree that the machinery of American government is broken, the single most powerful mechanism for repair appears to be effectively off the table: the passage of new amendments to the U.S. Constitution. Yet this might be the only solution that could bring about sustained change and reform.

Indeed, the amending process could be used to authoritatively address a range of persistent institutional challenges. Amendments could clarify ambiguities in presidential war powers and the use of recess appointments. They could reform or abolish the electoral college, allow naturalized citizens to run for president, enhance voting rights, and create a framework for campaign finance reform. They might enact congressional term limits, or curb lifetime tenure for Supreme Court justices at a time of ever-lengthening lifespans. The amending process could also be used to address thorny subjects such as the scope of social and economic rights and the nature of separation of church and state.

Of course, the immediate objection to the idea of amending the Constitution is that it is simply too hard to achieve in times of political division. And it’s true that the Framers did insulate their handiwork from quick or easy change. The most commonly used formula for amendment requires the support of two-thirds of each House of Congress and then ratification by three-quarters of the states. This high hurdle demands consensus that is both broad and deep, including bipartisan supermajorities in both Houses as well as the agreement at least 38 states.

However, it is not at all clear that amending the Constitution per se is an issue that needs to break along the usual lines of Republican versus Democrat or conservative versus liberal. In fact, there’s something for all sides to like. Conservatives can be heartened that adding a textual change to the Constitution is completely in accord with even the most originalist understandings of our founding document. Article V is clearcut in stating that a duly enacted amendment has the full force of the original text of the Constitution. At the same time, liberals might take comfort that, in practice, amendments historically have been used to expand personal freedoms and equal rights, including extending the electoral franchise and establishing equal protection of the law.

Judging from three high-profile books published in 2013 and 2014, support for the idea of amending the Constitution really does span the political spectrum. Former Supreme Court Justice John Paul Stevens, a man of the left, recently released Six Amendments: How and Why We Should Change the Constitution. Right-wing radio host and author Mark Levin joined the fray with the bestselling The Liberty Amendments: Restoring the American Republic, in which he proposes ten Constitutional reforms. And the noted good-government centrist Philip K. Howard suggests five amendments in The Rule of Nobody: Saving American from Dead Laws and Broken Government. While these books admittedly don’t overlap much in terms of the substantive changes they recommend, all give a central place to the amending process itself.

In many ways, then, attitudes towards amending the Constitution resemble attitudes towards federalism: people seem to like it when it works in favor of their preferred policies, but oppose it when it runs counter to their values. Consider that strong central government was supported by progressive Republicans early in the 20th century, embraced by New Deal national Democrats in the 1930s and 40s, opposed by segregationist Democrats in the 1950s and 60s, and then rejected by conservative Republicans in the 80s and 90s. However, by the 2000s, when Republicans had consolidated control in Washington D.C., many liberal urban Democrats took solace from living in the darkest blue cities of deep blue states.

Similarly, no party or ideology is, at the outset, opposed to the very idea itself of amending the Constitution. Yet, remarkably, no American under the age of 60 has seen a Constitutional amendment proposed and enacted within their adult lifetimes; the last such came in 1971 when the 26th Amendment lowered the national voting age to 18. (The trivial 27th amendment, regulating Congressional pay raises, entered the Constitution in 1992. But it was sent to the states by Congress in 1789 and then long forgotten, and thus is not truly a contemporary amendment.)

Historically speaking, long gaps of time between amendments, such as the span from 1971 to now, are not unusual. Rather, amendments typically are enacted in clusters, such as Amendments 1 through 10 in 1791; Amendments 13 through 15 some seven decades later, after the Civil War; Amendments 16 through 19 after another four decades, during the Progressive Era; and then Amendments 23 to 26 after another four decades had elapsed, this time linked to the Civil Rights Movement. (The few outliers from this pattern, such as Amendments 12, 20, 22, and 25, mostly fine-tune presidential elections, terms, and succession.)

Given that 43 years have once again elapsed since the amending process has been completed, historical cycles alone would suggest that America might be due for a round of constitutional tune-ups. The dire state of political gridlock and inefficiency in the United States over at least the last decade makes it a matter of urgency.

So what lessons might earlier rounds of Constitutional amending have to offer? Here are four to consider:

1. Avoid directly making public policy .The only amendment to directly create public policy was the 18th  Amendment, which created Prohibition and launched a decade of open defiance and organized crime. Constitutional amendments are blunt instruments not well suited to setting out policy specifics.

A better model would be the 16th Amendment, which gave Congress the power to impose an individual income tax without requiring it to do so or attempting to set specific rates or policies. Similarly, any future amendment designed to impact public policy would do better to give Congress the authority to establish uniform national policies rather than to determine specifically what those policies would be.

2. Avoid making personal exceptions. After Franklin D. Roosevelt was elected as president four times, the 22nd Amendment was enacted to limit presidents to two terms, but it explicitly excluded anyone who was president at the time of the amendment’s proposal (namely, President Harry Truman).

By this reasoning, any amendment curbing terms for members of Congress or the Supreme Court might not have its full effect for years or decades if it were to “grandfather in” current incumbents. A more workable model can be found in the 17th Amendment, which switched the authority to elect U.S. Senators from state legislatures to the people of each state. It was written to allow incumbent Senators to run out their current terms, but thereafter subjected them to the new system of popular election.

3. Enunciate values at the level of broad principles. Many modern constitutions in other countries micromanage values by explicitly inscribing them in the text of their Constitutions. The otherwise laudably democratic Constitution of South Africa is perhaps the greatest example of excess; for instance, it acknowledges ten national languages and encourages the promotion of three other African languages, as well as eight languages spoken among immigrant communities, three languages used in religious services, and sign language for the hearing impaired. The document as a whole runs for 140 pages, with ten chapters, 243 sections, and seven lengthy schedules.

This approach worked for post-apartheid South Africa but is wholly out of touch with both the spirit and letter of the U.S. Constitution. Thus the 14th Amendment’s statement of values in the “equal protection of the law” is more powerful in its abstract form than would have been a detailed listing that would inevitably become dated by the passage of time. No one specifically envisioned gender, and even less so disability or sexual orientation, as part of the 14th Amendment’s equal protection clause. But by articulating a value rather than providing a list, the 14th Amendment continues to reap dividends for the nation.

4. Enact as many amendments as needed for each to be clear and precise in its effect. While brevity is an important value of the U.S. Constitution, we  now live in a divided and litigious society. Thus, potential amendments –  for instance, to bolster voting rights or to alter the electoral college — should be clearcut enough to prevent any potential controversies and to forestall future contested elections.

No less than nine of the twenty-seven amendments have already addressed election-related issues, so there is a long precedent of using the amending process to adjust voting procedures. There’s no reason that future changes to our complex electoral process might not be broken among several smaller, clearer amendments. For instance, the 24th Amendment of 1964 is modest in scope, simply eliminating the poll tax without addressing other inequities in the voting system, but its specificity leaves it all but immune to challenge.

A final point worth recalling is that Article V does contain provisions permitting valid alternative routes for enacting amendments. For example, Congress can propose an amendment to the states not only via their legislatures, but also to one-time ratifying conventions to be specially convened in each state. It did so with the 21st amendment, which repealed Prohibition, in order to circumvent entrenched interests which might have exerted far more influence on a continuing legislative body than on a one-time, single-purpose assembly. Should Congress muster the ability to agree on an amendment, it need not be thwarted by the often-parochial politics of state legislatures but could use state ratifying conventions.

Conversely, Congress itself can be circumvented if two-thirds of the state legislatures petition for the calling of a Constitutional Convention to propose amendments. It was exactly this possibility, in fact, that made possible the 17th Amendment allowing for direct election of U.S. Senators. By 1910, 27 of the 31 required states had joined the effort; this essentially forced the hand of Congress, which feared the uncharted territory of a Constitutional Convention. Thus, it’s clear that even the credible threat of a Convention might be enough to spur durable change.

The American political system is designed to prevent sudden or radical change. But change it can, and change it must. Reclaiming the most powerful tool in the Constitutional arsenal could be the best way to enact that change.

The piece is cross-posted at Republic 3.0.