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The Limits of the Amending Power - James McClellan, Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government [1989]

Edition used:

Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government (3rd ed.) (Indianapolis: Liberty Fund, 2000).

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


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.