Front Page Titles (by Subject) Our Changing Constitution - Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government
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Our Changing Constitution - James McClellan, Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government 
Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government (3rd ed.) (Indianapolis: Liberty Fund, 2000).
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Our Changing Constitution
The accumulation of customs and usages that impinge upon the Constitution, and the actions of Congress, the President, and the Supreme Court that give meaning and substance to the powers that are granted and denied, form the basis of American constitutional law. In essence, such developments do not so much change the Constitution as they apply and refine it. The line between actual change and mere implementation cannot always be clearly drawn, of course, but we may take it as a general proposition that a grant of power carries with it, as Marshall contended, the means for its execution. Thus in Gibbons v. Ogden (1824), the great steamboat monopoly case involving the scope of the commerce power, Marshall argued persuasively that, inasmuch as Congress was authorized to regulate commerce, it followed that Congress must also be permitted to control the means, or the environment in which commerce moved, including navigation, “so far as that navigation may be, in any manner, connected with ‘commerce with foreign nations, or among the several States, or with Indian tribes.’ ”
More troublesome and difficult to justify, however, are actions of the Federal and State governments that actually create power, alter the distribution or division of power, or otherwise redefine the general principles or specific provisions of the Constitution. Such changes, in the absence of an authorizing amendment to the Constitution, raise serious questions of legitimacy because they change the “rules of the game” and the basic structure of government. Because they also conflict with the “permanent will” of the American people, they play havoc with the underlying republican principle of the Constitution and the democratic foundation upon which it rests.
Examples of these substantive constitutional changes abound, and no branch of the Federal government is entirely innocent of the charge of over-reaching. Broad delegations of legislative power to executive agencies and independent regulatory commissions, as we previously saw, tend to undermine the separation of powers and democratic accountability. The unrestricted extension of the commerce clause into purely local affairs has changed the meaning of federalism. This is amply demonstrated by U.S. v. Appalachian Electric Power Co. (1940). In this case, the Supreme Court held that Congress’s commerce power extended not only to navigable streams, but also to the whitewater rapids of the New River in West Virginia, on the theory that the river was navigable because it was capable of being made navigable at some future date. By means of this decision, much State power over local waterways, flood control, hydroelectric power, and watershed projects has been transferred to the Federal government. This represents an expansion of Federal power, not simply an application of a general power to regulate commerce among the States.
The expanded use of executive agreements since the 1930s, substantially increasing the power of the President in foreign affairs, represents yet another extension of power. Instead of making treaties, which require Senate approval, modern Presidents have relied increasingly on privately negotiated settlements with foreign governments, known as executive agreements. Although the Senate is bypassed and is thus denied an opportunity to fulfill its “advice and consent” obligations under Article II, Section 2, executive agreements are nevertheless regarded as having the same force of law as formal treaties. The conclusion seems unavoidable that the widespread use of these executive devices has resulted in a transformation of the Senate’s role in foreign affairs.
Among the various constitutional changes that have occurred as a result of Supreme Court rulings, the Court’s rule of interpretation known as the Doctrine of Incorporation has probably produced the most far-reaching reallocations of power. In our earlier discussion of the Bill of Rights, we noted that one of its principal objectives was to preserve intact State bills of rights under the new Constitution, and to protect the right of the States to define the scope and content of civil liberties in disputes between a State and its citizens. In Barron v. Baltimore (1833), a unanimous Supreme Court, speaking through Chief Justice Marshall, held that no provision of the Bill of Rights applied to the States.
Beginning in 1925 in the case of Gitlow v. New York, however, the Court initiated a series of decisions that resulted in the nationalization of the Bill of Rights. By 1947, every provision of the First Amendment had been made applicable to the States, and in the 1960s most provisions of the Bill of Rights protecting Federal criminal defendants were also applied to State proceedings. The vehicle used to accomplish this result was the Due Process Clause of the Fourteenth Amendment, which provides that, “No State shall deny any person life, liberty or property without due process of law.” Focusing on the word “liberty” in the clause, the Supreme Court expanded it to include various provisions of the Bill of Rights, thereby making the restrictions against the Federal government in the Bill of Rights applicable to the States through the Fourteenth Amendment. In this way, for example, freedom of the press was incorporated into the word “liberty” of the Fourteenth Amendment, thereby giving the Federal judiciary the final say on the scope and meaning of this freedom at both the State and Federal level through its power of judicial review.
Aside from the fact that the Doctrine of Incorporation has considerably enhanced the power of the Supreme Court and brought about a significant shift of power from the State to the national courts, this interpretive device has also resulted in extensive changes of the liberties themselves. Thus before the Supreme Court first applied the Establishment Clause of the First Amendment to the States in the landmark case of Everson v. Board of Education (1947), it was a common practice in many States to encourage religion and promote religious morality. Since 1947, however, the Supreme Court has held that almost any aid of any kind to religion constitutes an unconstitutional establishment of religion. This includes voluntary, nondenominational prayers in the public schools, which have been outlawed since 1962 as a result of Engel v. Vitale (the New York Prayer Case).
Many constitutional scholars question whether the Framers and backers of the Fourteenth Amendment intended by its provisions to abolish the federalism of the Bill of Rights and overturn Barron v. Baltimore, and the Doctrine of Incorporation has therefore engendered widespread criticism, even among members of the Federal Judiciary. Whatever its merits, the Doctrine of Incorporation represents a drastic transformation of power that serves to illustrate one of the ways in which the Constitution is changed without a clear mandate from the people and the States through the amendment process.
In his Commentaries on the Constitution, Joseph Story condemned judge-made law and cautioned against the use of interpretive techniques that change the meaning of the Constitution. The two greatest excesses of constitutional construction to be avoided, he advised, are excessively narrow and excessively broad interpretations, either of which can distort the intent of the Framers and rob the people of their Constitution. Taken to extremes, restrictions on the powers of government can make it difficult or impossible for government to function. Moreover, a power of government should not be restricted solely because it is susceptible of abuse. “Every power,” he observed, “however limited, as well as broad, is in its own nature susceptible of abuse. No Constitution can provide safeguards against it. Confidence must be reposed somewhere, and in free governments the ordinary securities against abuse are found in the responsibility of the rulers to the people, and in the just exercise of their elective franchise, and ultimately in the sovereign power of change.”
No less injurious to the public good are free and uninhibited interpretations in the name of expediency. Judges, wrote Story, should not “enlarge the construction of a given power beyond the fair scope of its terms merely because the restriction is inconvenient, impolitic, or even mischievous. If it be mischievous, the power of redressing the evil lies with the people by an exercise of the power of amendment. … Arguments drawn from impolicy or inconvenience ought here to have no weight. … Men on such subjects complexionally differ from each other. The same men differ from themselves at different times. Temporary delusions, prejudices, excitements, and objects have irresistible influence in mere questions of policy. And the policy of one age may ill suit the wishes or policy of another. The Constitution is not to be subject to such fluctuations. It is to have a fixed, uniform, permanent construction. It should be, so far at least as human infirmity will allow, not dependent upon the passions or parties of particular times, but the same yesterday, today, and forever.” That we have not fully lived up to these high standards and ideals of constitutional interpretation does not compel us to renounce them as unrealistic or false, but to recognize the frailty of constitutional government, the need for constant vigilance, and the primacy of the amending process as a device for protecting the constitution from unauthorized, illegitimate alterations of the basic design.
Amending the Constitution
“We must all obey the great law of change,” declared Edmund Burke. “It is the most powerful law of nature, and the means perhaps of its conservation. All we can do, and that human wisdom can do, is to provide that the change shall proceed by insensible degrees.” Like Burke, the Framers of the Constitution understood that not all change is reform. A constitution cannot long endure if it may be amended too easily or too swiftly. Nor can it be expected to survive if it cannot be changed at all; for a constitution cannot be preserved if it cannot be altered to correct errors in the document or meet the needs of society. The Articles of Confederation were probably doomed from the start because they required the unanimous consent of the States before any change could be made.
The procedures to be followed for amending the Constitution, as we noted in our discussion of federalism, are laid out in Article V. The Framers believed that the method adopted was a vast improvement over that prescribed by the Articles because it achieved a balance between permanency and change and thus assured the continuity of the Constitution. “The mode preferred by the convention,” observed Publius in Federalist No. 43, “seems to be stamped with every mark of propriety. It guards equally against that extreme facility, which would render the Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults.” Another virtue of the method selected, he added, is that it “equally enables the general and the State governments to originate the amendment of errors, as they may be pointed out by experience on one side, or on the other.”
Both Congress and the States may initiate amendments, but only the States may ratify them. An amendment can be proposed by a two-thirds vote of both houses of Congress or by a national convention called by Congress at the request of the legislatures of two-thirds of the States. Once an amendment has been proposed, it must be ratified by the legislatures of three-fourths of the States or by a special convention of three-fourths of the States. Congress decides which method of ratification is to be followed and may specify the length of time in which the amendment must be ratified. Except for the Twenty-First Amendment, which repealed the Eighteenth, every amendment added to the Constitution has been ratified by the State legislatures. Now that there are fifty States in the Union, no amendment can take effect unless thirty-eight States approve it. The President, it should be emphasized, plays no role in the amendment process. He may not propose amendments, and those that Congress proposes are not submitted to the President for signature. This has not prevented certain Presidents, however, from persuading a member of Congress to introduce an amendment that reflects the President’s wishes. In 1865, the proposed Thirteenth Amendment outlawing slavery was mistakenly submitted to President Lincoln and inadvertently signed by him.
The amendment process, as briefly outlined here, seems rather simple and straightforward. Upon closer inspection, however, we observe that it embraces a democratic theory of government and reaffirms basic principles of the American constitutional system.
First, it may be seen that the method of amendment reflects a certain philosophy of change. By requiring extraordinary rather than simple majorities, it prefers evolutionary to revolutionary change and establishes a cumbersome system that is intended to make the amendment process slow and difficult. The purpose is not to prevent change but to encourage careful deliberation, and to discourage hasty, ill-conceived, and sweeping alterations of the fundamental law by weak, impassioned, and transient majorities. In other words, it seeks to minimize the risks and uncertainties of change. Moreover, it guards against wholesale constitutional reform at breakneck speed that might so convulse the society as to produce turbulent disorder and revolutionary upheaval.
Second, the amendment process protects the States against each other and poses a barrier to sectional privilege and discrimination that might threaten the Union. Although some Anti-Federalists were critical of the extraordinary majority requirement on the ground that it was “undemocratic,” the Framers understood that the two-thirds and three-fourths rules were necessary to prevent a simple majority of the States, with possibly only a minority of the population, from “ganging up” on a minority of the States, with possibly a majority of the population. The arrangement agreed upon offers some assurance that public support for change will be strong and deliberate, and that it will be based on a national rather than a regional consensus. In these respects, the method of amendment is analogous to the Electoral College system, which encourages presidential candidates to campaign nationally and construct a national consensus in the race for the presidency.
Third, the method for amending the Constitution acknowledges the sovereignty of the States and strengthens the principle of federalism. If there is to be a formal change of the system, the States play a commanding role. In fact, they have the last word and in this respect exercise sovereignty over the nation. If Congress chooses not to propose an amendment, the States may even initiate an amendment of their own by the convention method, ratify it on their own authority, and circumvent the Congress.
Every amendment that has been added thus far, however, was proposed by Congress, and the States have never taken advantage of the convention option. The Constitution asserts that, in the event the States call for a convention, Congress “shall” comply. But as a practical matter there is no way to force Congress to act, and it would seem in this instance—as in many others—that the Framers relied upon the good faith of Congress for the observance of this requirement. If Congress were to call a convention, it would be appropriate for Congress to enact legislation providing for the organization and procedure of a convention—a step the Congress has yet to take.
Because the Constitution sets forth no rules or standards for the conduct of such a convention, there is some uncertainty about its possible composition and scope of authority. Some observers wary of the convention method have argued that it is a risky alternative because such a convention, once called, might become a “runaway” assembly bent upon rewriting the entire Constitution. Others contend, however, that this is a phantom danger because Congress would insist upon instructing the delegates to limit their consideration to a single amendment proposal and would be free to reject other amendments that might arise from the convention. In other words, the chance of a “runaway” convention is slim or nonexistent, according to this view, because it could not succeed unless the Congress was equally supportive of a wholesale revision of the Constitution. This is highly unlikely, it is further argued, given the deep and abiding affection for the Constitution among the American people.
These matters aside, the convention method has also been advocated on the ground that it is an effective political tool of the States for pressuring Congress into proposing amendments, the assumption being that, once the requisite number of States had called for a convention, Congress would be inclined to step in to take control of the process. By proposing the amendment itself, Congress would thereby eliminate the need for a convention, and the question of a “runaway” convention would be moot. All of this is speculative, however, and the course of action that might be taken in the event a convention is called cannot be known with certainty until it happens.
Fourth, the method of amendment in Article V recognizes and confirms the republican principle upon which the Constitution is based. Although the States, in their sovereign capacity, make the final decision on whether to ratify or reject an amendment, they act not alone but through representatives of the people. It is, then, the people in the several States, speaking through their elected representatives (or their convention delegates), who possess the ultimate authority to amend the Constitution.
The Limits of the Amending Power
Moreover, the Constitution implicitly acknowledges the right of the people and the States to add whatever amendment they desire, the only exception being that they cannot amend the Constitution so as to deprive a State of equal representation in the Senate without its consent. Article V also banned amendments before 1808 dealing with the importation and taxation of slaves, but this exception has obviously expired. Although there are no other words of limitation in Article V concerning the nature and substance of an amendment, parties opposed to certain amendments over the years have argued that an amendment which subverts or destroys a basic principle of the Constitution is itself unconstitutional. The Nineteenth Amendment granting women the right to vote, for example, was challenged on the ground that a State which had rejected the Amendment would be deprived of its equal suffrage in the Senate because its Senators would be persons not of its choosing—that is, persons chosen by the voters whom the State itself had not authorized to vote for senators. This was an ingenious argument, perhaps, but the Supreme Court was not persuaded. Strictly speaking, an amendment to the Constitution is part of the Constitution itself. It is therefore inherently incapable of being unconstitutional. An amendment may nevertheless violate the spirit of the Constitution, overthrow established principles of the system, and so drastically alter the structure as to create a new form of government. Thus an amendment abolishing the States or the separation of powers, though constitutional in a legal sense, would in reality be destructive of the American constitutional system as we know it. Even foolish amendments, however, are constitutional, and it is the prerogative of the American people under Article V to make fools of themselves and to abolish their form of government and replace it with a new system if that is their wish.
Fortunately, the Constitution has always enjoyed the overwhelming support of the American people, and such revolutionary amendments have never been seriously considered. A more direct and continuing threat to the Constitution is the frivolous amendment, that is, legislation presented in the guise of an amendment. Throughout American history, members of Congress have routinely offered amendments to the Constitution that are designed simply to implement a particular public policy. In the case of the Eighteenth Amendment, which outlawed the manufacture and sale of intoxicating liquor, they actually succeeded. The subsequent repeal of this amendment illustrates the wisdom of an old political maxim that is sometimes forgotten: when it is not necessary to amend the Constitution, it is necessary not to amend it. The distillation and distribution of spirituous beverages could have been prevented by ordinary legislation, and there was therefore no need for the amendment in the first place.
No less threatening to the integrity of the Constitution is the tendency of legislators to introduce formal amendments for the purpose of reversing a recent Supreme Court decision. The amendment process, however, was intended to correct errors in the original document and to adjust the Constitution to a changing world, not as a device for controlling the Court. Unless the Court’s decision is a formidable one substantially altering the distribution of power and the bedrock principles of the system, an amendment to overturn a particular case may well be an abuse of the amendment process. Ordinary legislation, such as the withdrawal of jurisdiction, should be considered if it can accomplish the same objective as an amendment. Whether an undesirable judicial decision should be corrected by an amendment or by a statute depends, however, on the nature of the case and its constitutional impact. If the amendment is too narrowly drawn, there is the added difficulty that, even if adopted, it may fail to cure the cause of the problem. Constitutional amendments, in other words, should be viewed as a last resort, not as the only recourse; and certainly they should not be used for light or transient reasons. For once they become part of the Constitution, for better or for worse, they acquire permanency of a sort and cannot easily be corrected, improved, or removed.
The fact that the people in the several States have amended the Constitution only seventeen times since 1791, when the Bill of Rights was adopted, is testimony to the wisdom and genius of the Framers. Two of the seventeen amendments—the Eighteenth and the Twenty-First— cancel each other out because the latter repealed the former. This leaves only fifteen during a period of two centuries. At least half of these reduce the powers of the States. Half of them also expand the suffrage. By contrast, only one amendment—the Eleventh—reduces the powers of the Federal government, and only four—the Eleventh, Fourteenth, Sixteenth, and Twenty-Sixth—overturn a Supreme Court decision. The States, it would seem, have contributed noticeably to the growth of Federal power either by accepting amendments that reduce their powers or by abstaining from the practice of using their amendment powers to restore the rights of the States.
The Amended Constitution
The following summary of Amendments XI–XXVII completes this introduction to the constitutional principles of American government, bringing the reader up-to-date on formal changes of our political system that have been made since the founding period.