Constitutional Amendments Work

by Rob Natelson, Our American Constitution, March 9, 2014

RobNatelson200

Opponents of a Convention of States long argued that there was an unacceptable risk a convention might do too much. It now appears they were mistaken. So they increasingly argue that amendments cannot do enough.

The “too much” contention was first promulgated in modern times by apologists for the liberal, ultra-activist Earl Warren/Warren Burger Supreme Court.  Specifically, these apologists feared a convention might propose amendments to reverse their favorite judicial decisions.  Their tactic was to claim that an amendments convention, even if legally limited, could turn into a “con-con” that disregarded its limits, repealed the Bill of Rights, and restored slavery.  (Yes, some of them really said that.)

The liberals who promoted this scenario must have been amused when some deeply conservative groups fell into the trap and began using the same argument to kill conservative amendments.

The “too much” line, however, has been losing its persuasiveness.   New research shows it to be legally and historically weak, and Americans increasingly are pondering the very real dangers of not resorting to the convention process the Founders bequeathed to us.

Hence the shift to the “too little” argument.  Its gist is that amendments would accomplish nothing because federal officials would violate amendments as readily as they violate the original Constitution.

Opponents will soon find their new position even less defensible than the old.  This is because the contention that amendments are useless flatly contradicts over two centuries of American experience — experience that demonstrates that amendments work. In fact, amendments have had a major impact on American political life, mostly for good.

* * * *

The Framers inserted an amendment process into the Constitution to render the underlying system less fragile and more durable.  They saw the amendment mechanism as a way to:

  • correct drafting errors;
  • resolve constitutional disputes, such as by reversing bad Supreme Court decisions;
  • respond to changed conditions, and
  • correct and forestall governmental abuse.

The Framers turned out to be correct, because in the intervening years we have adopted amendments for all four of those reasons.  Today, nearly all of these amendments are accepted by the overwhelming majority of Americans, and all but very few remain in full effect.  Possibly because ratification of a constitutional amendment is a powerful expression of popular political will, amendments have proved more durable than some parts of the original Constitution.

Following are some examples:

Correcting drafting errors

Although the Framers were very great people, they still were human, and they occasionally erred.  Thus, they inserted in the Constitution qualifications for Senators, Representatives, and the President, but omitted any for Vice President.  They also adopted a presidential/vice presidential election procedure that, while initially plausible, proved unacceptable in practice.

The founding generation proposed and ratified the Twelfth Amendment to correct those mistakes.  The Twenty-Fifth Amendment addressed some other deficiencies in Article II, which deals with the presidency.  (My reference to a particular amendment does not mean I agree with every provision in it.)

Both the Twelfth and Twenty-Fifth Amendments are in full effect today.

Resolving constitutional disputes and overruling the Supreme Court

The Framers wrote most of the Constitution in clear language, but they knew that, as with any legal document, there would be differences of interpretation.  The amendment process was a way of resolving interpretative disputes.

The founding generation employed it for this purpose just seven years after the Constitution came into effect.  In Chisholm v.  Georgia, the Supreme Court misinterpreted the wording of Article III that defines the jurisdiction of the federal courts.  The Eleventh Amendment reversed that decision.

In 1857, the Court issued  Dred Scott v.  Sandford, in which it erroneously interpreted the Constitution to deny citizenship to African Americans.  The Citizenship Clause of theFourteenth Amendment reversed that case.

In the 1970, the Court decided Oregon v.  Mitchell, whose misinterpretation of the Constitution created a national election law mess.  A year later, Americans cleaned up the mess by ratifying the Twenty-Sixth Amendment.

All these Amendments are in full effect today, and fully respected by the courts.  Some argue, in fact, that the Supreme Court actually over-enforces the Eleventh Amendment — a contention with which I do not agree.

Responding to Changed Conditions

The Twentieth Amendment is the most obvious example of a response to changed conditions.  Reflecting improvements in transportation since the Founding, it moved the inauguration of Congress and President from March to the January following election.

Other amendments as well were wholly or partially triggered by changed conditions.  The Seventeenth Amendment, which transferred elections for Senators from the state legislatures to the people, is still controversial in some quarters.  But it was adopted onlyafter social changes had caused widespread breakdown in the prior election system.(That is why the state legislatures themselves sought the change.) With the partial exception of Mark Levin, few if any of its critics address the very real problems the Seventeenth Amendment was designed to solve.

Similarly, the Nineteenth Amendment, which assured women the vote in states not already granting it, was passed for reasons beyond simple fairness.   When the Constitution was written, overwhelming domestic duties and very short female life expectancies effectively disqualified most women from politics.  During the 1800s, medical and technological advances made possible by a vigorous market economy improved the position of women immeasurably and rendered their political participation far more feasible.  Without these changes, I doubt the Nineteenth Amendment would have been adopted.

Needless to say, the Seventeenth, Nineteenth, and Twentieth Amendments all are in full effect many years after they were ratified.

Correcting and forestalling government abuse

Avoiding and correcting government abuse was a principal reason the Constitutional Convention unanimously inserted the state-driven convention procedure into Article V.  Our failure to use that procedure helps explain why the earlier constitutional barriers against federal overreaching seem a little ragged.  Before looking at the problems, however, let’s look at some successes:

  • We adopted the ThirteenthFourteenthFifteenth, and Twenty-Fourth Amendments to correct state abuses of power.  All of these are in substantially full effect.
  • In 1992, we ratified the Twenty-Seventh Amendment, 203 years after James Madison first proposed it.  It limits congressional pay raises, although some would say not enough.
  • In 1951, we adopted the Twenty-Second Amendment, limiting the President to two terms.  Eleven Presidents later, it remains in full force, and few would contend it has not made a difference.

Now the problems: Because we have not used the convention process, the first ten amendments (the Bill of Rights) remain almost the only amendments significantly limiting congressional overreaching.  I suppose that if the Founders had listened to the “amendments won’t make any difference” crowd, they would not have adopted the Bill of Rights either.  But I don’t know anyone today who seriously claims the Bill of Rights has made no difference.

In fact, the Bill of Rights continues to have a huge impact more than two centuries after adoption.  The courts enforce, to at least some extent, all of the original ten except, arguably, the Ninth.  Some, such as the First Amendment, have been “super enforced.” Others, such as the Second and Fourth are under relentless pressure, but remain far better than nothing at all.

What about the Ninth and Tenth? They are certainly under-enforced today, but we must remember that they enjoyed full effect for nearly 150 years.  No reasonable person would classify 150 years of effect as anything but a stellar political success.  Even today, the Tenth retains some of its power, as Congress learned when the Supreme Court upended its effort to corral all the states into the Obamacare Medicaid expansion.

“I have but one lamp by which my feet are guided; and that is the lamp of experience,” Patrick Henry said.  “I know of no way of judging of the future but by the past.”

In this case, the lamp of experience sheds light unmistakably bright and clear: Constitutional amendments work. (503)

Copyright (c) 2013 by PolyMontana LLC or by the author. All rights reserved.

Comments

  1. 1

    Congressional report validates JBS convention concerns https://www.fas.org/sgp/crs/misc/R42589.pdf

    March 18, 2014 at 12:33pm

    Written by Robert Brown

    March 18th, 2014

    A 2012 report from Congressional Research Service, whose analysis is described as “authoritative”, validates many concerns voiced by the John Birch Society regarding an Article V convention.

    Supporters of a convention have made claims that the Article V convention process is a way to “bypass Congress” in the amendment process, a process often claimed to be “totally controlled by the states”. We are told the states would determine the qualifications for delegates, the rules and subject matter for a convention, and could arrest and replace delegates if they overstepped these rules.

    Contrary to these claims, the report points to the surge of support for a Balanced Budget Amendment Convention, in the late 70’s and early 80’s, as a time when Congress introduced 41 bills, which “generally included quite specific standards for state petitions, delegate apportionment formulas and delegate qualifications, convention procedures and funding, specific limits for the life of a convention, ratification procedures, and judicial review.” (p.26, emphasis added)

    In these bills, Congress addressed the question of how many delegates and how many votes each state would have, but didn’t seem to subscribe to the claim that, “Of course, it would be one state, one vote.” Contrary to this, “Apportionment of convention delegates among the states was generally set at the formula provided for the electoral college.” (p.26, emphasis added) Congress seemed to feel the convention should represent the populations of the states, not just the states themselves. For example, this would give California 55 delegates and votes, while a smaller state, such as Montana, would have only 3 votes among a total of 535 (although giving Washington D.C. 3 votes was also on the table, which would raise the total to 538, see p.30). This should cause great concern for anyone whose views are not supported by the largest of states.

    Undermining the claim that states can control their delegates, and arrest them for exceeding the bounds set by the states, the report observed, “Most bills provided that … delegates received immunity from arrest in most instances during the convention.” (p. 27, emphasis added)

    The report explores extensively the arguments of whether a convention would be limited or unlimited in scope, and finally concludes, “the question “what sort of convention?” is not likely to be resolved unless or until the 34-state threshold has been crossed, and a convention assembles.” (p.17) In other words, “We have to pass the bill so that you can find out what is in it”! But of course, by then it will be too late to stop it.

    Remember, this report was written for Congress in 2012, to instruct them about their powers regarding an Article V convention. The overarching message is quite clear. “Article V delegates important and exclusive authority over the amendment process to Congress.” This exclusive authority applies to both methods of proposing amendments, those proposed by Congress as well as those proposed by an Article V Convention. (p.4, emphasis added) The history cited represents not only what Congress could do in the case that a convention is called, it represents what Congress has done in preparation for a convention. History is the most accurate predictor of the future, and Congress is being reminded of that history.

    Please see the entire report at the following link:

    https://www.fas.org/sgp/crs/misc/R42589.pdf

    Who is the Congressional Research Service?

    From the website of Congressional Research Service (http://www.loc.gov/crsinfo/)

    “The Congressional Research Service (CRS) works exclusively for the United States Congress, providing policy and legal analysis to committees and Members of both the House and Senate, regardless of party affiliation. As a legislative branch agency within the Library of Congress, CRS has been a valued and respected resource on Capitol Hill for nearly a century.

    CRS is well-known for analysis that is authoritative, confidential, objective and nonpartisan. Its highest priority is to ensure that Congress has 24/7 access to the nation’s best thinking.” (emphasis added)

    Robert Brown

    Field Coordinator

    The John Birch Society

  2. 2

    I will write a response to Brown’s article, because the report he cites actually supports a limited Article V convention. In fact, the report more than implies that the “runaway” theorists are plainly wrong. But if we are going to use what the federal government has actually done in the past relative to this issue, note that the U.S. Senate in the 1970s and 1980s, as well as the Attorney Generals under Carter and Reagan, issued resolutions and memos stating that Article V is limited, not unlimited.

    Additionally, this report is written in memo format, what law students are used to writing in 1st year classes; namely, state the “for” and “against” positions and get to “maybe”. This publication is, in reality, a regurgitation of old information and adds nothing new. It uses old reports and does not even touch the work of people like Natelson that shows the historical proofs of what conventions are.

    Also, Brown tries to make Article V appear as if no one knows what it is, something like Obamacare–let’s pass it and then read it. How insulting to the Founders and ratifiers of the Constitution! As Madison said about Article V in Federalist Paper 43, “The mode [of amending the Constitution] preferred by the convention seems to be stamped with every mark of propriety.” The Founders knew well what Article V was intended to do and how it was intended to proceed. I thought, of all groups, JBS proclaims that the Founders’ intellect and legal capabilities were of the highest order, such that our Constitution is perfect or nearly perfect. Yet, they couch Article V in maniacal terms. This can’t be.

    If the Founders knew what they were drafting when they drafted it and this Constitution was to, as Madison said, “bind the States forever,” then how did they create a procedure that blew the whole thing up in a single convention!? No, this makes no sense and contradicts the way JBS portrays the perfectness of the Constitution and the Founders’ intent of protecting liberty and rights.

    To illustrate this further, does JBS know what the Commerce Power was “intended” to do upon its draft and ratification? How so? After all, all it states is, Congress shall have the power to regulate the commerce among the several States. What procedures, limitations and definitions are contained in that clause, such that JBS can dogmatically state that the Founders intended to limit the power of Congress? Or do they rely on the fact that the States ratified the Tenth AMENDMENT to limit that power? Surely, JBS wants people to believe the Commerce Power limits the federal government. In other words, they preach the end they WANT to see.

    Yet JBS claims the opposite effect with Article V and states that the Founders created a provision that essentially dumps the whole Constitution into the pits of hell. They preach an end that they DO NOT WANT to see. If they really believe this, how can they claim the rest of the Constitution is what JBS says it is? This is logically contradicting relative to the Founders’ intent of the Constitution.

    If, however, as JBS states, the whole Constitution was drafted and ratified in a way that protects all those rights and sovereignty that JBS claims is protected by the Constitution, then they must include Article V in that description. As such, they SHOULD be preaching the end they WANT Article V to have: namely, a limited convention to particular topics.

    JBS fights against their own work and against their own view of the Constitution by preaching doomsday Article V prophecies. Is self-fulfilled prophecies of doom any better than trying to use Article V in a way that the States want to limit federal power? At least if the federal government attempts to circumvent the States’ clear political will of limiting federal power the States can respond appropriately with the force of sovereignty and get to the head of federal corruption. This is what we call bravery, sovereignty and political will.

    Does JBS prefer the States ignore what the Founders plainly gave us to fix political problems of the federal government? If they do, then they cannot claim the Founders created a Constitution as they describe and should quit indoctrinating people and tell them the truth: the Founders did not know what they were doing!

  3. 3

    You have one thing right, many of us don’t trust congress. However, why do you think we trust the state legislatures any more? You left out that George Soros supports Art 5 and is is funding a COS, having a ultimate Con Con with the agenda for a new constitution. You can talk until you’re red in the face that a COS will never result in a runaway Con Con. But Soros and the socio-cons are banking on it. Nothing just happens or won’t happen if big bucks are behind planning and manipulating it to happen.

    The supporters of a COS keep comparing what happened back in 1786(?) to what won’t happen today. They don’t take into account that we have a totally different theater. Different actors, props, script and audience all accustomed to demanding and altering anything and everything to suit their own purpose. And just like what they verbally edit ignore or interpret of the Constitution Art V, won’t be treated any different. BTW I wouldn’t brag about how wonderful any of the amendments after the 10th “corrected” the constitution’s minor flaws.

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