ON JUNE 11, 1787, George Mason of Virginia opened the discussion of constitutional amendment at the constitutional convention in Philadelphia with a forthright statement that “the plan now to be formed will certainly be defective, as the Confederation has been found on trial to be. Amendments therefore will be necessary, and it will be better to provide for them, in an easy, regular and Constitutional way than to trust to chance and violence.”1 Almost exactly five months later, as the new constitution drafted in Philadelphia was beginning to wend its uncertain path through the ratification conventions of the thirteen states, George Washington expressed importantly similar sentiments in a letter to his nephew, Bushrod Washington (who would be appointed by John Adams to the U.S. Supreme Court). “The warmest friends and the best supporters the Constitution has,” admitted the president of the Philadelphia convention, whose stature was responsible for much of the legitimacy that both it and its handiwork enjoyed, “do not contend that it is free from imperfections; but they found them unavoidable and are sensible if evil is likely to arise there from, the remedy must come hereafter.” Fortunately, “there is a Constitutional door open” to such remedies. “The People (for it is with them to Judge) can, as they will have the advantage of experience on their Side, decide with as much propriety on the alterations and amendment which are necessary.” Indeed, wrote our national paterfamilias, “I do not think we are more inspired, have more wisdom, or possess more virtue, than those who will come after us.”2
The title of this collection, Responding to Imperfection, is a recognition of Washington’s and Mason’s wisdom. One should not minimize the importance of their acknowledgment of imperfection. Surely more than a few founders of political orders have been tempted to adopt John Locke’s conceit, when he drafted the 1669 Fundamental Constitutions of Carolinas, that “these fundamental constitutions shall be and remain the sacred and unalterable form and rule of government … forever.”3 It was a fundamental breakthrough in American constitutional theory, manifested originally in the drafting of state constitutions, that the “rules of government” would be decidedly “alterable” through a stipulated legal process.4 Indeed, Gordon Wood has described the very notion of an amendment process as the “institutionaliz[ation] and legitim[ation of] revolution.”5
This truly radical implication of the notion of amendment is more than a little frightening, and James Madison can perhaps be viewed as trying to return to a more Lockean emphasis on inalterability when he emphasizes in The Federalist, No. 49 the need for “a reverence for the laws” that should, consequently, lead us to reject any frequent recourse to popular appeals that “would carry an implication of some defect in the government.”6 As Stephen Griffin argues in his essay in this book, the success in achieving Madison’s sacralization of the Constitution may well have been purchased at a price of discouraging recognition of its all-too-present imperfections and/or blinding us to the ways that we have in fact responded to those imperfections by significantly, if sometimes stealthily, modifying our constitutional principles.
In any event, perhaps the basic questions within any jurisprudential system will be, first, the substantive criteria by which one in fact defines imperfection and, then, the procedural means by which one responds to any such recognitions.7 How does (or should) presumptively necessary change take place within a given legal order? These are, obviously, analytically separable questions—one is descriptive, the other normative. Both are, however, central to this book.
As Washington noted, the framers of the Constitution themselves indirectly acknowledged the possibility of imperfection by including within it Article V, which provides a procedure of amendment. Given the frequency with which Article V will be cited in the articles below, it is probably most efficient to set it out in full here (and, concomitantly, to ask the reader to return here when necessary in order to consult the specific text of Article V):
Article V
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
Article V raises a host of important questions. Consider only the following:
1. Can an individual state, prior to the collective ratification by three-quarters of the states, rescind its ratification, thus negating whatever prior approval it might have given to a proposed amendment? This is not at all an abstract hypothetical, for, of course, several of the states that ratified the Equal Rights Amendment (ERA) in the 1970s attempted to rescind their ratification. However, because the constitutionally required number of thirty-eight states was never reached, under any definition, before the time period for ratification expired, the country was not called upon definitively to resolve the issue.
2. How much control does Congress possess over the process of ratification? After all, Congress extended the time for ratification of the ERA for an additional three years beyond the initially promulgated seven years. Many scholars attacked the constitutionality of the extension, though, again, the ultimate failure of the ERA to gain ratification mooted the question as a practical matter.
3. How long do states have to ratify amendments, assuming that Congress does not specify a time limit? This question was made decidedly nonhypothetical in regard to what was originally the second of the twelve amendments proposed by Congress in 1789, which required an intervening election before a congressional pay raise could take effect. Only the initial third through twelfth amendments were ratified by 1791, and they, of course, are now known as the Bill of Rights. Nonetheless, states sporadically ratified the original second amendment, and in 1992 Michigan became the thirty-eighth state to ratify it. Given a union of fifty states, that meant that three-quarters of these states, in a process extending from 1789 to 1992, had ratified it. Several commentators, supported by dictum in a significant case decided in 1921 by the U.S. Supreme Court, suggested that the original second amendment had “died” at some point between 1789 and 1992 because of a constitutionally unspecified, but nonetheless inferrable, requirement of “contemporaneous ratification.”8
4. Should one wish answers to questions about rescission, extension, and time limits for ratification, who should give them? The courts? Congress? (To name only two candidates.)
5. What if the states do in fact coordinately call for a new constitutional convention? Could its agenda be limited to any given topics mentioned by the states, or would the convention have plenary power, free in effect to be as wide-ranging in defining imperfection and proposing potential solutions as was the Philadelphia convention, which went far beyond its ostensible mandate simply to “revise” the Articles of Confederation? And who would set the rules by which the convention operated (e.g., majority vote of states or majority vote of delegates, to name only one issue)?
All of these questions are of vital importance and have spawned a significant scholarly literature.9 It is important to state at the outset, though, that this book will only tangentially touch on them. To treat them with the depth they deserve would require a volume at least as long again as the one you now hold in your hands, and this, for better or worse, seemed inadvisable. This book, then, is not principally about what might be termed the “internal” structure of Article V, that is, the basically procedural questions raised by recourse to the Article as a mode of constitutional amendment.
Instead, the focus of this volume involves somewhat different questions, even if most of the essays necessarily make reference at various points to Article V. For example, a central focus of several of these essays concerns the exclusivity of Article V as a method of bringing about amendment. Everyone concedes that Article V sets out a way by which the Constitution can be changed. Is it also the way? Or are there alternative means of achieving fundamental change within the American constitutional system? As a descriptive matter, can one possibly understand the changes that have undoubtedly occurred within that system by reference only to the mechanisms of Article V?
This last question is answered with a vigorous no by both Bruce Ackerman and Stephen Griffin. Both point to the presence of truly fundamental changes within the American political system that have taken place outside of the channels provided by Article V. If one agrees with them, at least descriptively, then the next question is whether these changes can be embedded within a legal-historical narrative that allows us to accept them as legitimate, with a legal integrity equal to those (other) amendments that have followed the route set out by Article V. Ackerman especially is insistent that such a narrative is available, and he sketches its outlines in his essay.
We should be aware, though, that one need not address the conundrums posed by Griffin or, especially, Ackerman unless we first recognize that a particular kind of change has occurred within the constitutional system. What kind of change that might be is the central topic of the essays by myself and by Noam Zohar. I am particularly interested in the distinction between what might be termed “ordinary” change within a legal system that is the result of standard-form interpretation of the relevant materials within that system and a special kind of change that we call “amendment.” The latter, I believe, is generally thought to be presumptively unavailable through standard-form interpretation; it requires, therefore, some special kind of procedure for legitimation. Thus I ask the reader to submit to a multiple-choice question regarding the number of amendments to the U.S. Constitution, and I go on to argue that one cannot, or at least should not, answer this question by simple—and, I believe, simpleminded and atheoretical—reference to the numbered textual additions found following the text of the Constitution as ratified in 1788.
If one agrees, as do Ackerman and Griffin, that there are additional amendments beyond these numbered textual additions—consider, for example, “Congress may pass any regulation it believes conducive to the national health, safety, or welfare so long as the conduct regulated has any link whatsoever with ‘interstate commerce’” (as distinguished from the present Article I, section 8, clause 3, which, properly interpreted, might allow only regulation that Congress can reasonably believe contributes to the facilitation of a smoothly flowing and flourishing national economy); or “the President may declare limited war on relatively insignificant foreign countries without formally consulting Congress”—then it is obviously necessary to account for their presence as part of our operative, legitimated constitutional understanding. This is only one reason, among many, that I think that the questions raised (and provoked) by Ackerman and Griffin are among the deepest in all constitutional theory.
Zohar writes from a quite different perspective, that of the scholar of Jewish law, or Halakha. Few deny that changes have occurred within this more than two-thousand-year-old legal system, but many would indeed deny that any of these changes should be termed “amendments.” This underscores the importance of developing a theory of “amendment” per se, a point that is central, of course, to my own essay. Zohar’s essay is also one of the several in the book that attempts to place the theory of constitutional amendment within a comparative perspective. Most of the comparisons, such as those discussed particularly in the essays by Donald Lutz and by Stephen Holmes and Cass Sunstein, deal with secular constitutions, whether those of the American states or of foreign countries. Zohar, of course, deals with an explicitly sacred legal system, where it may be especially difficult even to concede the presence of genuine “amendment” (in contrast to more incremental “change” legitimated by reference back to enduring foundational materials). If, as Madison exemplifies, it is sometimes difficult even for secular systems to grant center stage to recognition of their own imperfections, it is all the more difficult for a system that claims divine inspiration to do so. How can one declare that God’s own artifacts are nevertheless flawed and in potential need of the particular kind of change we call “amendment”? Although Zohar obviously concentrates on only one particular religio-legal system, I hope that the questions he raises will resonate with readers from some other religious traditions as well.
Why, the reader might wonder, does this book contain a chapter on changes within Jewish law but not, for example, a chapter on changes within the British constitutional system? No doubt an interesting essay could be written on the latter; the reason I did not solicit one, though, is that Great Britain, like six other states,10 has chosen to forego reliance on a canonical written text as the foundation of its legal system in favor of an unwritten constitution. This book focuses not on the general problem of change within structures of thought, a fascinating and clearly important topic in its own right, whether one is talking about constitutional orders like Great Britain’s, moral conventions, or, indeed, science,11 but, rather, on the particular problem of explaining change within practices that are derived, in terms of their own self-presentation, from certain specifiable foundational texts.
From a somewhat different perspective, less concerned with the actual history of post-1787 amendment than with constitutional possibility, Akhil Reed Amar also presses the case that Article V is by no means exclusive. Instead, he argues, the very meaning of popular sovereignty—captured by the first three words of the Constitution’s preamble, “We the People”—entails the possibility that a popular majority can amend the Constitution through a national referendum. David Dow, on the other hand, just as vigorously contests the kinds of arguments made by Ackerman and Amar and makes the case for the exclusivity of Article V. Frederick Schauer, in turn, argues that it is a fundamental category error to look to the Constitution (or any constitution) to provide criteria for its own grounding. Constitutional amendment, from this perspective, is much more a question of empirical fact—does a relevant society in fact recognize certain changes and structure its behavior accordingly?—than one of constitutional interpretation as such. Formal interpretation begins after the recognition of something as the Constitution.
Another set of essays—those by Mark Brandon, Walter Murphy, and John Vile—cluster around the issue of substantive limits to constitutional amendments, including, of course, those proposed and ratified through Article V. Does Article V set out only procedural hurdles that (at least some) amendments must run, or does it contain, albeit implicitly, substantive limits on what can legitimately be viewed as part of the American constitutional system? It was the very possibility that Article V was reducible to only its procedural requirements that apparently led the famous mathematical logician Kurt Gödel to refuse to become a citizen of the United States inasmuch as a predicate for naturalization is the new citizen’s taking an oath of fidelity to the Constitution. Gödel, a refugee from Nazi Germany, was unwilling to commit himself to a constitution that might tolerate adoption of Nazi-like policies, as long as the procedural niceties of Article V were followed. Was Gödel correct, or can substantive limits on constitutional change be teased out of other parts of the Constitution or out of the basic notion of “constitutionalism” itself?
Walter Murphy presents the case for inherent limitation, drawing in part on the constitutional experience of Germany and India in regard to similar questions. Mark Brandon presents a case study of the “original” Thirteenth Amendment, in fact proposed by Congress but never ratified by three-quarters of the states, which would in effect have entrenched chattel slavery at least in those states that had already adopted that terrible system as of 1861. John Vile presents the case for a wholly procedural Article V and attacks theories such as Murphy’s that would deny recognition to certain changes that had otherwise run the gauntlet established on the surface of that text.
Finally, as already suggested, two essays, by Donald Lutz and by Stephen Holmes and Cass Sunstein, offer comparative material on the question of constitutional amendment. Lutz presents a fascinating survey of the procedures for formal amendment as found in the constitutions of the fifty American states and in a number of foreign countries. He uses this data to construct an “Index of Difficulty” in regard to formal change and then suggests that those systems that are “too difficult” to change formally, most definitely including the U.S. Constitution, will develop alternatives, including amendment by purported interpretation. Not the least importance of Lutz’s essay, in addition, is its recognition that one alternative to amendment is outright replacement by formally new constitutional structures. He notes that for the states making up the United States, it has definitely been the exception, rather than the rule, to have been governed by a single constitution since the state’s founding.
Lutz’s interest in structures of constitutional change comes in part from his experience in advising many foreign governments as to what would be apt constitutions, though his essay does not refer overtly to his experiences in this regard. Holmes and Sunstein, on the other hand, explicitly draw on their recent experience in advising several Eastern European countries about what kinds of constitutional structures to adopt in their transition from communism to some version (one hopes) of liberal democracy. Awareness of potential imperfection is at the heart of their own argument about the inadvisability of making constitutional amendment too difficult.
These essays are certainly not intended to serve as the last word on the extraordinarily important issues that they raise. My hope is that they will be viewed as helpful goads to a long overdue theoretical exploration that will take us to the very heart of the enterprise of constitutionalism.
1 Max Farrand, The Records of the Federal Convention of 1787 (New Haven: Yale University Press, 1937), 1:202–3.
2 Letter of George Washington to Bushrod Washington, November 10, 1787, in Michael Kammen, ed., The Origins of the American Constitution: A Documentary History (New York: Penguin Books, 1986), p. 83.
3 The Fundamental Constitutions of Carolinas § 120, in Benjamin P. Poore, ed., The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the United States, 2d ed. (1878), p. 1408, quoted in Russell L. Caplan, Constitutional Brinkmanship: Amending the National Convention (New York: Oxford Univerity Press, 1988), p. 14.
4 See Willi Paul Adams, The First American Constitutions: Republican Ideology and the Making of the State Constitutions in the Revolutionary Era (Chapel Hill: University of North Carolina Press, 1980), pp. 139–44.
5 Gordon Wood, The Creation of the American Republic, 1776–1787 (Chapel Hill: University of North Carolina Press, 1969), p. 614.
6 The Federalist, No. 49, in Clinton Rossiter, ed., The Federalist Papers (New York: Mentor, 1961), pp. 314–15. See Sanford Levinson, “‘Veneration’ and Constitutional Change: James Madison Confronts the Possibility of Constitutional Amendment,” Texas Tech Law Review 21 (1990): 2443, for a fuller elaboration of the arguments made in this paragraph.
7 I am well aware that this distinction between substance and procedure can easily (and often properly) be “deconstructed.” It is, however, a distinction that we in fact cannot do without, as a pragmatic matter, which is how it is used in the text above.
8 See Dillon v. Gloss, 256 U.S. 358, 374–75 (1921). I discuss the issue further in Sanford Levinson, “Authorizing Constitutional Text: On the Purported Twenty-Seventh Amendment,” Constitutional Commentary 11 (1994): 101.
9 I offer some exemplary citations, but no one should believe that these exhaust the field: Caplan, Constitutional Brinkmanship; Walter Dellinger, “The Recurring Question of the ‘Limited’ Constitutional Convention,” Yale Law Journal 88 (1979): 1623, and “The Legitimacy of Constitutional Change: Rethinking the Constitutional Amendment Process,” Harvard Law Review 97 (1983): 386; Ruth Bader Ginsburg, “Ratification of the Equal Rights Amendment: A Question of Time,” Texas Law Review 57 (1979): 919; Grover Rees III, “Throwing Away the Key: The Unconstitutionality of the Equal Rights Amendment Extension,” Texas Law Review 58 (1980): 875; Laurence Tribe, “A Constitution We Are Amending: In Defense of a Restrained Judicial Role,” Harvard Law Review 97 (1983): 433.
10 My enumeration of the seven countries—Israel, New Zealand, Oman, Qatar, Saudi Arabia, United Arab Emirates, and the United Kingdom—is taken from Martin Edelman, Courts, Politics, and Culture in Israel (Charlottesville, Va.: University of Virginia Press, 1994), p. 133, n.1. Edelman offers an extensive discussion of Israel’s struggle over a written constitution at pages 6–30, as does Gary Jeffrey Jacobsohn in Apples of Gold: Constitutionalism in Israel and the United States (Princeton: Princeton University Press, 1993), pp. 124–35.
It is arguable that the United Kingdom is gaining a de facto written constitution as the result of its submission to the European Court of Human Rights in Strasbourg and that Israel, too, is taking on the trappings of a written constitution as the result of certain “basic laws” passed by the Knesset. On Great Britain, see Vernon Bogdanor, “Britain: The Political Constitution,” and Roger Morgan, “The European Community: The Constitution of a ‘Would-Be Polity’ (1957),” in Vernon Bogdanor, ed., Constitutions in Democratic Politics (Aldershot, Eng.: Gower Publishing Co., 1988), pp. 53–72, 367–74.
11 It is surely significant that one of the most influential books of the past thirty years has been Thomas S. Kuhn, The Structure of Scientific Revolutions (Chicago: University of Chicago Press, 1970). There are, no doubt, important similarities between structures of scientific thought and American constitutionalism, but I think there are also important differences, one of which is the purported predication of the latter, unlike the community of nuclear physicists (or, for that matter, the United Kingdom) on a single foundational text.