THE CONSTITUTIONAL amending process has been described as “a domestication of the right to revolution”1 and as a key that unlocks the Constitution,2 and yet Article V of the Constitution, the amending article, contains two entrenchment clauses. The first—guaranteeing slave importation for twenty years—had a built-in termination, but the second, providing that no state would be deprived of its equal suffrage in the Senate without its consent, raises contemporary enforcement issues. Both clauses lead logically to the question of whether there are any implicit limits on the constitutional amending process.
In addressing this question, the records of the constitutional convention offer at least some guidance. The major debates on the amending process came in the closing week of deliberations. By September 10, the amending provision provided for Congress to call a convention on “the application of the Legislatures of two thirds of the States.”3 Elbridge Gerry, Alexander Hamilton, and James Madison criticized this proposal. Gerry feared that two-thirds of the states might “bind the Union to innovations that may subvert the State-Constitutions altogether.” Hamilton argued that the state legislatures would “not apply for alterations but with a view to increase their own powers,” and that ills would be better perceived by the national legislature. Madison objected to the vagueness of the convention provision, and subsequently proposed the following provision: “The Legislature of the U—S—whenever two thirds of both Houses shall deem necessary, or on the application of two thirds of the Legislatures of the several States, shall propose amendments to this Constitution, which shall be valid … when the same shall have been ratified by three fourths at least of the Legislatures of the several States, or by Conventions in three fourths thereof.” John Rutledge, a delegate from South Carolina, almost immediately amended this proposal to include the slave importation reservation, noting that “he never could agree to give a power by which the articles relating to slaves might be altered by the States not interested in that property and prejudiced against it.”
The amendment issue reemerged on September 15, when the present method of constitutional amendment was finalized. The provision requiring a constitutional convention upon the request of two-thirds of the states was adopted after Mason expressed fears that otherwise Congress would have too much control.4 More to the point, the provision for equal suffrage in the Senate was also accepted after Roger Sherman’s animadversions: “that three fourths of the States might be brought to do things fatal to particular States, as abolishing them altogether or depriving them of their equality in the Senate.” Hence, he said, “The proviso in favor of the States importing slaves should be extended so as to provide that no State should be affected in its internal police, or deprived of its equality in the Senate.” Madison feared that the floodgates were about to be opened. “Begin with these special provisos,” he noted, “and every State will insist on them, for their boundaries, exports &c.” While enough delegates shared Madison’s sentiments to narrow the range of Sherman’s reservations and to reject a series of amendments proposed by Sherman, the Convention adopted Morris’s proposal “that no State, without its consent shall be deprived of its equal suffrage in the Senate.” Madison attributed this unanimous action to “the circulating murmurs of the small States.”
Elsewhere I have argued both that the existing entrenchment provision is as enforceable as any other part of the Constitution5 and, furthermore, that, whatever doubts one might have about their desirability, new entrenchment clauses could be added to the Constitution.6 The remedy for such clauses, were there intense opposition by the populace, would lie “outside” the Constitution, perhaps even in force of arms, rather than in an appeal to any “internal” constitutional limits on entrenchment.
The question of explicit restraints on the amending process leads logically to the question of whether there are any implicit limitations on Article V, a question also explored, though with different conclusions, in the contributions of Akhil Reed Amar, Mark Brandon, and Walter Murphy to this volume. The argument for such restrictions was advanced early in the nineteenth century by John C. Calhoun, vice-president under Andrew Jackson and afterward, as previously, a senator from South Carolina. As part of his general theory of nullification, Calhoun posited that states had the right, if they believed that the national government was exercising powers that had not been entrusted to it, to “nullify” the law, in effect suspending its operation until the states could adopt an amendment to grant this power to the national government. Even where states adopted such an amendment, however, Calhoun argued that states could secede in cases where such an amendment “would radically change the character of the constitution, or the nature of the system; or if the former should fail to fulfill the ends for which it was established.”7 Calhoun’s arguments for secession were, of course, resoundingly rejected by the outcome of the Civil War, as were later arguments that the Thirteenth Amendment was so revolutionary as to be unconstitutional.8
Arguments from states’ rights proponents, however, continued to be popular. These arguments were specifically applied to the amending process by Thomas Cooley, one of the most influential legal commentators of his day, in an article published in 1893. Reviewing the two entrenchment clauses within the Constitution, Cooley argued that they were not exclusive but that “there are limitations that are far more important than this, that stand unquestionably as restrictions upon the power to amend.”9 In an argument that was apparently not directed to any specific amendment, Cooley formulated four examples of unconstitutional amendments. These were an amendment that attempted to detach a certain part of the Union, an amendment that applied different taxing rules to some states, an amendment that established a nobility, or an amendment that attempted to create a monarchy.10 Arguing that the first fifteen amendments had all “been in the direction of further extending the democratic principles which underlie our constitution,” Cooley contended that amendments “must be in harmony with the thing amended,” and he distinguished that which amends a constitution from that which “overthrows or revolutionizes it.” Cooley also attempted to offer a credible reason why the Founders did not include other stated restrictions on the amending process:
If the makers of the constitution, in limiting this provision [Article V] stopped short of forbidding such changes as would be inharmonious, they did so because it was not in their thought that any such changes could for a moment be considered by congress or by the states as admissible, since in the completed instrument no place could possibly be found for them, however formal might be the process of adoption; and as foreign matter, they would just as certainly be declared inadmissible and therefore invalid without an express inhibition as with it.
Cooley proposed an analogy based on the notion of higher law. A “fruit grower” need not explicitly “forbid his servants” from placing poisons on fruit trees. “The process is forbidden by a law higher and more imperative than any he could declare.” Restatement is wholly unnecessary, for “no additional force could possibly be given by re-enactment under his orders.” To know the purpose of fruit growing is to know also that one does not place poisonous grafts on the trees. The same is true, presumably, of the purpose and practice of constitutionalism.
Cooley’s arguments were general; he does not appear to have been concerned about any of the actual amendments that had been added to the Constitution in the tumultuous period following Appomattox. His arguments were, however, appropriated and expanded by numerous conservative commentators who subsequently hoped to persuade the courts to invalidate the Fifteenth, Eighteenth, and Nineteenth Amendments, the first the product of the Civil War and the other two the result of the Progressive Era.11
In a Harvard Law Review article challenging the national Prohibition and women’s suffrage amendments, attorney William Marbury contended “that the power to ‘amend’ the Constitution was not intended to include the power to destroy it,” but only to “carry out the purpose for which it was framed.”12 “The power to amend the Constitution,” he argued, “cannot be deemed to have been intended to confer the right upon Congress … to adopt any amendment … which would have the same tendency … to destroy the states, by taking from them, directly, any branch of their legislative powers.”13 Marbury further argued that Prohibition deprived each state of its equality in the Senate by opening the door to a destruction of “those functions which are essential ‘to its separate and independent’ existence as a state.”14 Finally, distinguishing constitutional matters from matters of ordinary legislation, Marbury argued that it was unwise to lay down conditions that might prove ultimately unsuited to the future.
A decade later, and in a similarly prestigious law journal, law professor Selden Bacon relied on an ambiguous letter sent by James Winthrop to the Massachusetts Constitutional Ratifying Convention to argue that the Bill of Rights was designed to limit the scope of future constitutional amendments.15 While the first nine amendments protected personal rights, the Tenth Amendment addressed itself to limiting governmental powers. Moreover, by the subtle maneuver of Roger Sherman,16 who had argued for a restriction at the Philadelphia convention limiting the scope of amendments, those powers reserved to the states and the people were those “not delegated to the United States.”17 But, asked Bacon, what power could this be other than the power of amendment? Thus viewing the Tenth Amendment as a specific limit on the amending power, Bacon concluded that only conventions had the power to ratify amendments infringing state police powers. In Bacon’s paraphrase of the Tenth Amendment: “If the Federal Government wants added direct powers over the people or the individual rights of the people, it must go to the people to get them; the power to confer any such added direct powers over the people and their individual rights is reserved to the people; and the right, at the option of Congress, to get such added powers from any other source, is wiped out.”18 This argument, if accepted, would apply not only to several past amendments but also to the Child Labor Amendment proposed by Congress in 1924, which would have in effect reversed the holding of the Supreme Court in Hammer v. Dagenhart that regulation of child labor was beyond the scope of national power and thus reserved to the states.19 Arguments like those of Marbury and Bacon were rejected in a series of court decisions20 that culminated in the Court’s almost complete hands-off approach to the amending process in Coleman v. Miller.21
Nonetheless, many of the same arguments made earlier in this century for implicit limits on the amending process are relevant to Walter Murphy’s recent attempts, including his essay in this volume, to breathe new life into the notion of implied limits on the amending process. Murphy has argued that certain provisions of the Constitution are so fundamental, and so essential to human dignity, that an amendment repealing them should be voided by the courts.22
Murphy offered two examples of unconstitutional amendments. The first involved restriction of the First Amendment.23 Murphy reasoned as follows:
1. Incorporation of the First Amendment into the Fourteenth means that the operative constitutional provision effectively reads: “Neither Congress nor the states, singly or together, can make a law abridging” freedom of speech, press, assembly, or religion.
2. Constitutional amendments are law.
3. Therefore it is outside the scope of state and legislative powers to amend the Constitution to restrict the First Amendment’s protections.24
In a second example, Murphy imagined that an “ideology of repressive racism sweeps the country.”25 Its proponents muster the requisite majorities in Congress and in the states to ratify a constitutional amendment endorsing racial discrimination. If such an amendment were challenged in court, Murphy did “not see how the justices, as officials of a constitutional democracy, could avoid holding the amendment invalid.”
Murphy outlined three arguments. The first, borrowed from the Federal Constitutional Court of West Germany, suggested that the Constitution is an entity with “an inner unity” and a commitment to “certain overarching principles and fundamental decisions to which individual provisions are subordinate.”26 In this case, he argued, “the protection of human dignity” would, as a core constitutional value, take precedence over the racist amendment. Murphy adopted a second argument from a court decision in India. He reasoned that Americans have chosen “a constitutional democracy which enshrines certain values, paramount among which is human dignity.” This value is even more important than the democratic procedures by which it was intended to be secured: “By adopting and maintaining such a system of values, the American people have surrendered their authority, under that system, to abridge human dignity by any procedure whatever.” Since this Constitution makes “no provision for destroying the old polity and creating a new one … its terms cannot supply legitimate procedures for such a sweeping change.” Murphy further noted that “constitutional tradition establishes a legitimate process for establishing a totally new system through a convention chosen from the entire polity.”27 Murphy’s third argument was similar to the previous two. Since “there are principles above the literal terms of the constitutional document,” Murphy argued, the racist amendment would be invalid as a denial of “the right to respect and dignity,” because it sought to “contradict the basic purposes of the whole constitutional system.”
Despite Murphy’s appealing objectives, I believe that courts should steer clear of imposing implicit limits on the substance of amendments, even in the extreme circumstances Murphy mentions. From the standpoint of constitutional interpretation and the framers’ intent, the presence of two explicit limits within Article V and the constitutional convention’s deliberate rejection of two others seem to argue against the existence of still more. As Chief Justice Marshall wrote in regard to provisions in Article III: “Affirmative words are often, in their operations, negative of other objects than those affirmed; and in this case, a negative or exclusive sense must be given to them or they have no operation at all.”28
An additional objection to judicially recognized limits on the amending process stems from what such a notion might do to the delicate balance that has been worked out during the last two hundred years between the judicial branch and the people. However one might stress the “constitutional” as opposed to the “democratic” aspects of the American government,29 the exercise of judicial power by an unelected branch of government whose members serve for life has always been in tension with popular rule.30 One reason that judicial review is accepted is that judgments of the courts can be reversed through the amending process. Moreover, the potential impact of the amendment process on the courts cannot be measured merely by counting those few occasions when it has been directly utilized,31 since the possibility may have deterred court decisions in other areas as well. To empower the courts not simply to review the procedures whereby amendments were adopted but also to void amendments on the basis of their substantive content would surely threaten the notion of a government founded on the consent of the governed.32
Recognition of the right of the judiciary to invalidate amendments might also upset the delicate balance that has been worked out among the three branches of government. There is certainly merit in the notion that while the judicial branch may interpret the Constitution, the Constitution is created by other hands, that is, by the Congress, the state legislatures, or a constitutional convention. Murphy notes the possibility, albeit arguably a fairly remote one, that the people or their agents could adopt measures that would undermine human dignity. What should also be noted, however, is that, if the judiciary took upon itself the power to void the very substance of amendments, this branch of government could itself end up undermining such dignity. Indeed, attention to American history would suggest that such dangers of judicial usurpation would be far more likely than the dangers that Murphy cites. Surely, for example, it would not have been preposterous (as Taney showed in Dred Scott)33 to argue that the Constitution was adopted by whites and could not be extended to others, the Civil War Amendments to the contrary notwithstanding. As noted earlier, almost all the Progressive Era amendments were met with similar challenges.
Under the U.S. constitutional system, it is clear that the solution to a bad or unworkable amendment, the Eighteenth for example, is another one repealing it. Similarly, undesirable judicial decisions can be overturned by the courts themselves or by amendments. But what would the people or the other branches do if the courts, relying on the idea of implicit limits on the amending power, adamantly rejected all attempts at reform?
Here the role of the amending process as a “safety-valve”34 or alternative to revolution needs to be appreciated. When popular sentiment has reached the boiling point, it is unlikely to be calmed by plugging the stopper. Even if the courts had the courage to oppose the raging tides of opinion in such contingencies—and cases such as Dred Scott,35 Plessy,36 Gobitis,37 Korematsu,38 and Yamashita39 show that they have often failed in similar circumstances—there is little reason to believe they would be successful in doing anything other than sparking revolution. It is far more likely that courts accepting Murphy’s invitation to judge the validity of the Constitution itself would intervene on those more problematic occasions when they could enhance their own institutional powers or their own view of what is best at the expense of the people and the elected branches of government.
These arguments notwithstanding, one must still meet Murphy’s own positive examples and arguments. His argument against restrictions on the First Amendment has the advantage of resting on a seemingly explicit, rather than an implicit, constitutional limit, but it has problems. While an amendment may indeed be a form of law, it is unlikely to be the form referred to in the First Amendment; the two would rarely be equated in ordinary discourse. If the Founders meant no law or amendment, surely they would have been explicit, as they were in establishing limits in Article V.40 Moreover, the language of the supremacy clause seems to indicate that the terms law and amendment are not used synonymously elsewhere in the Constitution.41 Finally, Murphy’s argument is inconsistent with existing constitutional interpretation under which presidents and governors can veto laws but not amendments.42
As to Murphy’s example of a racist amendment, he first argues that unifying constitutional principles should take precedence over contrary provisions. This argument would be more compelling if one could assume that the Constitution expressed a single set of coherent principles, laid down once and for all by divine decree. Not only is the Constitution an imperfect document;43 it is also evolutionary, with amendments and changes in interpretations designed to reflect the development of refined public opinion. In such a constitution, more recent constitutional provisions are presumptively in closer accord with the consent of the governed than conflicting earlier provisions.44 This is why there is no need for today’s justices to ask whether blacks should be counted as three-fifths of a person or whether senators should be elected by state legislatures.
Murphy’s second argument is that the nation has opted for a system in which the people “have surrendered their authority, under that system, to abridge human dignity by any procedure” short of “a convention chosen from the entire polity.”45 It is doubtful that the existing Constitution was itself written and adopted in such a convention.46 Surely, the Constitution permitted a number of practices—including slavery and the disenfranchisement of women—that are today clearly recognized as violations of such human dignity. More important, Murphy’s proposal is dangerously close to that of Calhoun’s concurrent majority and could just as easily be applied—to cite some plausible historical examples—not to enhance human dignity, but as a means of protecting the South’s “peculiar institution,” all-white or all-male suffrage, or the election of senators by state legislatures.47
To turn, finally, to Murphy’s contention that there are “principles above the literal terms of the constitutional document” is to enter a constitutional morass.48 This writer accepts the notion that such natural law principles exist, but if so-called noninterpretative judicial review (based on extraconstitutional sources) is problematic and controversial, the prospect of enthroning the judiciary to rule against the Constitution is especially troubling. Not only does such a doctrine tempt the Court to assume powers it should not exercise, but judicial decisions that misinterpreted or misapplied natural law principles would be almost impossible to reverse.
Clearly, not every moral wrong has a constitutional or judicial remedy. Prudence dictates that popular rule and national union may sometimes, at least in the short term, have to take priority over the protection of a specific conception of human dignity. Ultimately, the best haven for human dignity is the cleft of a constitution, changeable by a populace that will, over time, be subject to enlightenment and improvement.
Both the strengths and weaknesses of arguments such as Murphy’s—and similar reflections by Sanford Levinson,49 Sotirios Barber,50 and William Harris II51—are revealed in regard to the controversy several years ago about the constitutional legitimacy of a “flag-burning amendment.” The issue was raised, of course, by the Supreme Court’s rulings in Texas v. Johnson52 and United States v. Eichman53 voiding the application of laws designed to prohibit the burning of the American flag. With the warm encouragement of President Bush, amendments were quickly introduced in Congress to reverse these judgments. A popular version of this proposal would have provided: “The Congress and the States shall have power to prohibit the physical desecration of the flag of the United States.”54 This proposed amendment was defeated in congressional votes in 1989 and 1990.55
I have no hesitation in saying that a flag-burning amendment would be unwise and contrary to the wide protection typically given to free speech in America. I am equally confident, though, that if proposed and ratified according to the procedures specified in Article V of the U.S. Constitution,56 it would have been as valid as any other part of the Constitution.
Authors of two recent articles specifically address the flag-burning amendment;57 however, while taking different approaches, both argue that such an amendment would be unconstitutional. Eric Isaacson, whose argument is much like Murphy’s, focused primarily on the language of the First Amendment, and he ultimately concluded that there was a limit not so much on the substance of amendments restricting speech as on the procedures by which they may be adopted. Jeff Rosen, whose argument on this point is somewhat reminiscent of Selden Bacon’s, focused more on the issue of natural rights and on the role of the Ninth Amendment and concluded that there is an important unstated limit on the amending power.
Isaacson began from the premise that constitutional amendments are a form of “law.”58 The language of the First Amendment, however, provides that Congress “shall make no law” limiting freedom of speech. Isaacson portrayed the language of the First Amendment as unique: “It is far more restrictive than any other limitation contained in the Bill of Rights. No other provision in the Bill of Rights operates by withdrawing from Congress the power to make any law. Thus, the first amendment is radically different from the rest of the Bill of Rights; its only analogue may be found in the absolute disabilities to act imposed by article V.”59 For Isaacson, the language of the First Amendment was designed specifically “to disable the Congress,”60 language subsequently extended through the doctrine of incorporation to state legislation as well. As such, Isaacson suggested that alteration of the First Amendment by a flag-burning exception or any other could only be made by a method of amendment that bypassed Congress and the state legislatures, that is, by amendments proposed by the people in an Article V convention and subsequently ratified by special conventions within three-fourths of the states.61
However well motivated, Isaacson’s arguments are inadequate. In the first place, whatever the words of the First Amendment appear to say, the Court has not as yet interpreted these words to have the blanket meaning that Isaacson has attributed to them. Especially at the state level, laws prohibiting obscenity, libel, false advertising, perjury, fighting words, and other forms of speech continue to be upheld by the courts. Even the most liberal advocates of free speech seem to have been convinced by Holmes’s example of the illegality of falsely shouting fire in a crowded theater and causing a panic.62 As commentators have noted, at least since incorporation, “the Supreme Court’s interpretation of these guarantees has been both broader [applying, for example, to executive as well as legislative actions] and narrower than a literal reading of the amendment might suggest.”63 It would therefore be inconsistent to use Isaacson’s approach only in the area of constitutional amendments.
One could, of course, argue that Justice Hugo Black and other absolutists, although never commanding a majority of the Court, were nonetheless correct and that the First Amendment provision for “no law”64 means precisely “no law.” If this position is accepted, however, Isaacson would have to show that “law” not only “may” be interpreted but should be interpreted so as to include constitutional amendments.65 For reasons suggested when criticizing Murphy’s arguments on this point, however, this is a dubious argument. Despite his analysis of the purposeful nature of the language of the First Amendment,66 Isaacson presents no direct evidence that one of the intentions of those who pressed for or ratified the First Amendment was to limit the amending process (which was already far more difficult than the normal lawmaking procedures) as opposed to the ordinary law-making process.67 Second, Isaacson offers no reason to suggest why, if freedom of speech was of such concern, it would be any less permissible for conventions to limit this right than for legislatures. Third, the language of Article V where the amending power is specified does not refer to amendments as laws but as amendments. Similarly, although the language is not necessarily conclusive, the wording of the supremacy clause in Article VI of the Constitution suggests that the Constitution (and presumably the amendments that have been added to it) should be distinguished from “the Laws of the United States which shall be made in Pursuance thereof.” By the same token, the provisions of the Bill of Rights are called “amendments” or “articles” rather than “laws,”68 and it would be quite awkward, and even inaccurate, to refer to them as the first ten “laws.”69
Surely, if the framers of the First Amendment intended to limit amendments, as well as laws, or even in addition to them, they picked some circuitous language to fulfill their purpose. As the provisions of Article V reveal, Congress has no authority “to make” any amendment. It can, of course, override a presidential veto and thus “make” a law, as it were, on its own authority; it has, however, no authority to “make” an amendment absent consent on the part of three-fourths of the states. It would seem that if it was the purpose of the First Amendment specifically to limit Article V, it should either have directly said so or at least prohibited Congress and the states (as it now effectively does through the doctrine of incorporation, albeit not with any specific design that Isaacson or anyone else has shown to restrict the amending process) from passing such “laws” jointly. If Isaacson is correct, by his own analysis the First Amendment would be the only one of the first ten amendments to carry such a meaning, again suggesting that the First Amendment—which was originally designated as the Third rather than First70—may have a more extraordinary place in American history than we have as yet come to realize. To this writer, at least, Isaacson’s arguments are not convincing.
Finally, the language of Article V does not appear to designate one type of ratification for one class of amendments and a second type of ratification for others, as Isaacson seeks to do. To the contrary, this language clearly leaves the decision to Congress, specifying that amendments become valid “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.”
The arguments of Jeffrey Rosen against the constitutionality of the proposed flag-burning amendment are even more revolutionary than Isaacson’s and would overturn many existing understandings of the workings of Article V and the amending process. Like Isaacson, Rosen ultimately concludes not that amendments restricting freedom of speech are impossible but rather that they can only be adopted by a special process and employing specific language. He bases his arguments, however, not simply on the First Amendment but on his understanding of Article V and the more elusive Ninth Amendment.
Rosen argues that the right of speech was one of the unalienable natural rights retained by the people and therefore subject, through the Ninth Amendment, to judicial protection even against the amending process. The primary obstacle to using the Ninth Amendment has been, of course, the problem of defining what particular rights it was designed to secure.71 For Rosen, such rights can be identified by reading sources at the time of the American Founding, particularly state constitutions. Although Rosen acknowledges some difficulty in deciding which such rights were alienable—that is, which could be exchanged for some kind of societal guarantees—and which were inalienable, he included “rights of religious conscience and the right of revolution” in addition to freedom of speech in the latter category.72 Rosen also believes that each generation has the right to add or subtract from the list of what they consider to be natural rights, and he suggests that state constitutions are once again the place to turn for such determinations.73
Almost by definition, natural rights that are inalienable may not be surrendered by the people. If the people cannot surrender them, then neither can their agents, that is, their political representatives.74 One might well agree that this would give the people the moral right to disobey unjust laws that sought to deprive them of their natural rights. Rosen, however, goes much further, arguing that such rights are “judicially enforceable” under the Ninth Amendment,75 and that to withhold judicial protection from such rights would be to “deny or disparage” the very rights the Ninth Amendment were designed to protect.76 Acknowledging special problems in protecting natural rights against constitutional amendments, Rosen nonetheless argues that the Court has a special responsibility to do so. Interestingly enough, though, the Court’s decision would not truly be final, but, instead, would serve
in effect [to] “remand” the amendment back to the people or to their Article V delegates and ask them if they really believe the right to be natural and retained.
If the proposers and ratifiers, on remand, are determined to overrule the Supreme Court, they may not merely express their legislative will (we believe Congress should have the power to regulate flag burning); they must also provide a clear statement of their judicial reason (because we no longer believe the right of speech to be natural). In this way, judicial review of the substance of an amendment does not thwart popular sovereignty, but merely ensures that it is deliberately exercised as the Founders intended—within the boundaries of natural law, as defined by the people themselves.77
Rosen concludes that, to be accepted by the Supreme Court, an amendment would have to say “something like” the following: “Freedom of speech shall not be construed as a natural right retained by the people and protected by the First and Ninth Amendments.”78 Otherwise, by voiding amendments that fall short of expressing such sentiments, the Court “would defer to, rather than thwart, the sovereignty of the people.”79
Again, good intentions do not a sound argument make. To begin with a minor point, Rosen seeks to ascertain the content of natural rights by looking at statements of the Founders and provisions in contemporary state constitutions, but it is far from clear that either supports his view that freedom of speech (particularly the kind of symbolic speech represented by flag burning) was and is recognized as such a natural right. While Rosen has a fairly convincing quotation indicating that Madison accepted free speech—albeit not necessarily symbolic speech—as a natural right, his quotation from Roger Sherman refers specifically to “writing and publishing” within restraints of “decency and freedom.”80 Moreover, Rosen appears to identify only two contemporary state constitutions—Kentucky’s and Utah’s—that specifically identify speech as such a right,81 far indeed from a majority. If the courts were permitted to identify a right as natural on the basis of statements in two or more constitutions, many of which are quite prolix, it is doubtful that there would be any effective limit on its authority to overturn both laws and amendments.
There is, in Rosen’s analysis, a more significant problem that has generally plagued those who have attempted to enforce the Ninth Amendment, namely, how to make a positive, judicially enforceable obligation from language that appears, like the language in that of the Tenth Amendment, which follows it, to be a simple declaration. The Bill of Rights, it will be recalled, was adopted when fears were expressed by anti-Federalists that the national government might exercise powers over speech, press, and other important rights whose protection was not specifically enumerated in the Constitution. In originally arguing against the adoption of such amendments, leading Federalists argued that a bill of rights might not only be unnecessary but could also be dangerous.82 What if, in listing rights, the Constitution did not include a person’s right to refrain from tipping a hat to a governmental official? Would such an omission indicate that governors could therefore adopt such an absurd requirement?83 The most obvious reason to suggest that the Ninth Amendment was included in the Bill of Rights was to answer this question in the negative. The people need not worry that just because they forgot to list a right, the government therefore had the power to take it away.
Rosen seeks, however, to do more. While the Ninth Amendment is worded so as to protect rights that are not enumerated in the Constitution, Rosen attempts to interpret it to protect the right of free speech, which clearly is so enumerated against the possibility that such protection could be withdrawn or limited. This not only fills in the meaning of an already elusive amendment but seems to do so in direct contradiction to what the amendment says. Incidentally, if Rosen’s interpretation is accurate, it would also oblige the Supreme Court to recognize and presumably enforce other unalienable natural rights, including the right of revolution—which is clearly not a legally enforceable conventional right.84
Another way to see the flaw in Rosen’s scheme is to ask what would have happened had the Supreme Court decided differently in Texas v. Johnson and U.S. v. Eichman. The possibility that the Court could easily have done so (and, indeed, could still do so) is heightened by the 5–4 votes in these decisions and by the vigorous language used by the dissenting justices.85 In short, a change in a single vote of a single justice would have altered the outcome. In such a case, the presumed natural right to burn the American flag would have had no national constitutional protection, and, indeed, absent a change of mind on the part of the Court itself, an amendment would have been required to afford such protection. In such a plausible case, the putative purpose of the Ninth Amendment, as envisioned by Rosen, would have been defeated, and that would have been the end of the matter.
Rosen argues, however, that, once five or more justices of the Supreme Court decided that flag burning was a right protected by the First Amendment, even an amendment could not overturn this decision, short of language specifically indicating an intent to restrict the scope of the First and Ninth Amendments. Rosen justified this stance not as a way of thwarting popular will, but as a way of giving it, as it were, a second chance. What Rosen seemingly forgot in formulating this scheme, however, is that this would not be a second chance but a third—one in which the people might well conclude that the idea of popular sovereignty had struck out.86
Under existing state and national constitutions and perhaps by the principle of the Ninth Amendment itself, no act is illegal unless and until there is a law against it.87 Thus, the people, through their representatives, make a decision about the status of certain activities when they first pass laws prohibiting them. Because of the separation of powers in both the national and state governments and the presence of bicameral legislatures at the national level and in all but one state, there is indeed a strong inertia against the passage of most legislation. In most state legislatures, there are a variety of structural and constitutional hurdles to the passage of legislation as well as the threat of executive veto.88 There are similar and perhaps even greater obstacles to the passage of legislation in Congress.89
Once legislation has emerged from the state legislatures or from Congress, however, the matter of constitutionality is hardly over. Because of the acceptance of judicial review in America, such legislation may then, if it is challenged before the courts in a given case or controversy,90 still be declared unconstitutional, as were the statutes at issue in the two flag-burning cases. This is the mechanism that already provides for the “second look” that Rosen thinks is so important.
Faced with judicial invalidation of a law, the people have three options—disobedience, acquiescence, or adoption of a constitutional amendment. This latter process is so difficult that only four decisions of the U.S. Supreme Court have been overturned in all American history.91 In more than two hundred years of such history, only thirty-three amendments have been proposed by the necessary congressional majorities,92 and, of these, only twenty-seven have subsequently been ratified by the necessary three-fourths of the states. Under Rosen’s scheme, however, an amendment that attempted to limit flag desecration or alter inalienable rights should be struck down by the Court unless it says it is specifically aimed at modifying the First and Ninth Amendments, in which case it would have to go once again through the awesome amending hurdles before being valid. Not surprisingly, Rosen finds no evidence for this view in the language of Article V.
Indeed, it would be difficult to think of a parallel understanding of the amending process that has been expressed in American history without going back to the view of John C. Calhoun, whose views were outlined briefly above. By Rosen’s analysis, if a majority of justices on the Supreme Court thought that there was a natural right to own slaves (and Southern defenses of slavery as a positive good for both master and slave, as well as recognitions in previous state constitutions of the rights of slaveowners, do not make this proposition appear as ludicrous as it might first appear),93 then the Fourteenth Amendment would not have been sufficient but would have required a specific follow-up to amend the Ninth Amendment.
This illustration may further point to the whole problem with interpretations that attempt to read implicit limits into Article V. To guard against fairly unlikely scenarios, the proponents of such limits have urged the Court, as Calhoun once urged the states, effectively to usurp the sovereignty of the people as it is expressed in the amending process.94
It can surely be argued that the people are not always right and that popular sovereignty is no absolute guarantee of justice,95 but the invitation to increased judicial activism ignores the already fine balance that has been worked out among the three branches of government to preserve liberty and justice. Today, charges that the judiciary is a countermajoritarian institution96 can be cogently met by the argument that, in exercising judicial review, the Court is merely enforcing the people’s will as this will is expressed in the Constitution.97 This claim is strained the further judges stray from the constitutional text98 (so-called noninterpretative review).99 Whatever difficulties judges may now face invalidating laws in the absence of clear constitutional language would be geometrically compounded if courts sought to invalidate validly ratified parts of the Constitution itself. A court seeking to invalidate an amendment adopted through Article V procedures would risk a serious backlash that might cripple all its authority. Perhaps more important, there is the distinct possibility that the courts would use their power to undermine core constitutional values. It is also possible that talk of judicially invalidated amendments will encourage a certain recklessness and lack of concern among amendment advocates, allowing them to take the same position regarding amendments that some now take in regard to laws—that is, deferring questions of wisdom and constitutionality to the courts.
If it is thus recognized that courts do not currently have the power to invalidate validly ratified amendments, it seems appropriate to consider possible remedies. As a guard against worst-case scenarios, one might propose that no amendment could be ratified by the states until first approved by two or three successive Congresses, or until states conducted hearings on the subject of ratification.100 This, or some similar measure, would expose new amendments to increased publicity and reflection before they could be incorporated into the Constitution. Such worst-case scenarios seem far too unlikely, however, to justify such a change in an already difficult amending process.101
Ultimately, then, the arguments surrounding implicit limits on Article V do not so much point to the need for future constitutional reform as they illuminate the nature and wisdom of the existing constitutional document. The Constitution—and, more specifically, the amending clause—wisely protects liberty by guarding against the transient whims of the majority, while placing its ultimate faith in the consent of the governed. To date, at least, this faith does not appear to have been misplaced.
This chapter is based in part on an earlier article, “Limitations on the Constitutional Amending Process,” Constitutional Commentary 2 (1985): 373. An expanded version of this chapter has also appeared as chapter 7 of Contemporary Questions Surrounding the Constitutional Amending Process (Westport, Conn.: Praeger, 1993). The author expresses appreciation to the Faculty Research Committee at Middle Tennessee State University for a research award to complete this study.
1 Walter Dellinger, “The Legitimacy of Constitutional Change: Rethinking the Amending Process,” Harvard Law Review 97 (1983): 431.
2 Grover Rees III, “Throwing Away the Key: The Unconstitutionality of the Equal Rights Amendment Extension,” Texas Law Review 58 (1980): 67.
3Max Farrand, ed., The Records of the Federal Convention of 1787 (New Haven: Yale University Press, 1966), 2:557. All of the quotations in this paragraph are taken from 2:557–59.
4 Ibid., 2:629–33. All of the quotations in this paragraph are taken from these pages.
5 “Limitations on the Constitutional Amending Process,” 378.
6 Ibid., pp. 385–87.
7 Found in John C. Calhoun, The Works of John C. Calhoun, ed. Richard K. Cralle (1851–56; reprint, New York: Russell & Russell, 1968), 1:301. The quotation is from Calhoun’s Discourse on the Constitution and Government of the United States. Calhoun’s views on the amending process are analyzed in greater detail in John R. Vile, The Constitutional Amending Process in American Political Thought (New York: Praeger, 1992).
8 See Sanford Levinson’s contribution to this volume, Chapter 2.
9 Thomas M. Cooley, “The Power to Amend the Federal Constitution,” Michigan Law Journal 2 (April 1893): 117. The ensuing quotations from Cooley are taken from pp. 117–20.
10 Lester B. Orfield lists over twenty-five differing topics that have been offered as implicit limits on the amending process. See The Amending of the Federal Constitution (Ann Arbor: University of Michigan, 1942), pp. 87–88, n. 12.
11 This controversy is covered in much greater detail in Vile, The Constitutional Amending Process, pp. 157–82.
12 William Marbury, “The Limitations Upon the Amending Power, Harvard Law Review 33 (1919): 225. Marbury is quoting from a contemporary decision, Livermore v. Waite, 102 Cal. 113, 119, 36 P. 424 (1894). For further analysis of Marbury’s views, see Peter Suber, The Paradox of Self-Amendment (New York: Peter Lang, 1990), pp. 95–97.
13 Marbury, “The Limitations Upon the Amending Power,” p. 228.
14 Ibid., p. 229.
15 Selden Bacon, “How the Tenth Amendment Affected the Fifth Article of the Constitution,” Virginia Law Review 16 (1930): 775. At this point, Bacon’s analysis appears to rest on the narrowest, and therefore the most vulnerable, view of the framers’ intent.
16 Ibid., p. 778, n. 19.
17 Ibid., p. 777.
18 Ibid., p. 782.
19 247 U.S. 251 (1919). The Court had also struck down, in Bailey v. Drexel Furniture Co., 259 U.S. 20 (1922), an attempt to regulate child labor through taxation.
20 See especially the National Prohibition Cases, 253 U.S. 350 (1920), and Leser v. Garnett, 258 U.S. 130 (1922).
21 397 U.S. 433 (1939). This opinion is, however, subject to a great deal of scholarly criticism. See John Vile, Contemporary Questions Surrounding the Constitutional Amending Process, chap. 2.
22 In effect, Murphy is arguing for judicial recognition of implicit entrenchment provisions on Article V. Similarly, Akil Reed Amar has suggested that an amendment repealing free speech or denying to the people “certain economic and social prerequisites” would be illegal. See “Philadelphia Revisited: Amending the Constitution Outside Article V,” University of Chicago Law Review 55 (1988): 1045. Bruce Ackerman does not believe that such rights are currently entrenched, but he favors doing so. See We the People: Foundations (Cambridge, Mass.: Harvard University Press, 1991), pp. 320–21.
23 In “The Right to Privacy and Legitimate Constitutional Change,” in Shlomo Slonin, ed., The Constitutional Bases of Social and Political Change in the United States (New York: Praeger, 1990), pp. 213–35. Murphy uses the example of the right of privacy as a right that also cannot be radically abridged under the current constitutional system.
24 Murphy, “The Art of Constitutional Interpretation: A Preliminary Showing,” in M. Harmon, ed., Essays on the Constitution of the United States (Port Washington, N.Y.: Kennikat, 1978), p. 151.
25 Walter Murphy, “An Ordering of Constitutional Values,” Southern California Law Review 53 (1980): 755. The quotations from this article are taken from pp. 755–57. All emphases are Murphy’s.
26 The material cited is quoted directly from the German court decision.
27 This reservation suggests that Murphy’s argument is more limited than it may first appear—not that certain changes simply cannot be made but rather that to make them special procedures must be utilized.
28 Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174 (1803).
29 The distinction is Murphy’s. Murphy argues that “democracy stresses equality and popular rule” while “constitutionalism emphasizes that certain rights of the individual citizen are protected against government, even against popular government and majority rule.” “An Ordering of Constitutional Values,” pp. 707–8.
30 Alexander Bickel, The Least Dangerous Branch (Indianapolis: Bobbs-Merrill, 1962), pp. 16–23. See also Henry Abraham, “The Judicial Function Under the Constitution: Theory and Practice,” NEWS for Teachers of Political Science (Spring 1984): 12.
31 The threat of using the untried convention mechanism, for example, has been linked to the passage of at least four amendments. Dwight W. Connelly, “Amending the Constitution: Is This Any Way to Call for a Constitutional Convention?” Arizona Law Review 22 (1980): 1016.
32 Laurence Tribe, “A Constitution We Are Amending: In Defense of a Restrained Judicial Role,” Harvard Law Review 97 (1983): 435–36.
In Murphy’s “Consent and Constitutional Change,” in James O’Reilly, ed., Human Rights and Constitutional Law: Essays in Honour of Brian Walsh (Dublin: Round Hall Press, 1992), he defers treating the “fear of judicial oligarchy” (p. 124; see also p. 145) but essentially argues that the virtue of government by consent is subordinate to higher constitutional notions of human dignity. For me the simple fact that both notions are embodied in the same constitution and are in potential conflict shows the danger of allowing courts to choose one or the other principle to void new amendments that may be added to the document.
33 Scott v. Sandford, 60 U.S. (19 How.) 393 (1857).
34 This specific analogy is found in many places. It may have been coined by Joseph Story. See Vile, The Constitutional Amending Process, p. 79.
35 Scott v. Sandford, 60 U.S. (19 How.) 393 (1857).
36 Plessy v. Ferguson, 163 U.S. 537 (1896).
37 Minersville School District v. Gobitis, 310 U.S. 586 (1940).
38 Korematsu v. United States, 323 U.S. 214 (1944).
39 In Re Yamashita, 327 U.S. 1 (1946).
40 Addressing a related issue, Francis H. Heller observes that “a Constitution viewed as a political document is a framework for the exercise of power in the polity. Legal rules, by contrast, purport to determine the broad range of societal relationships. When a constitution is treated as just another form of law, there results an ambiguity of thought that tends to overshadow significant functional differences.” Heller, “Article V: Changing Dimensions in Constitutional Change,” University of Michigan Journal of Law Reform 7 (1973): 71–72.
41 The language is not conclusive, but it would appear that a proper reading would place amendments under the heading of “Constitution” rather than “the Laws of the United States.” The supremacy clause, found in Article VI, reads as follows: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
42 Hawke v. Smith, No. 2, 253 U.S. 231 (1920); Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378 (1798). These precedents have been called into question by Charles L. Black, Jr., “Correspondence: On Article I, Section 7, Clause 30—and the Amendment of the Constitution,” Yale Law Journal 87 (1978): 896.
43 Mark A. Graber, “Our (Im)Perfect Constitution,” Review of Politics 51 (Winter 1989): 86.
44 This is the principle that Peter Suber identifies as the “ex posterior principle.” See The Paradox of Self-Amendment, pp. 207–8.
45 Murphy, “An Ordering of Constitutional Values,” 756–57. Emphasis in original.
46 Rhode Island did not send delegates to the constitutional convention, and delegates to the convention were appointed by state legislatures rather than elected by conventions.
47 Murphy himself indicates that such arguments could have been plausibly raised by those seeking to restrict application of the Thirteenth and Fourteenth Amendments. See Walter Murphy, “Slaughter-house, Civil Rights, and Limits on Constitutional Change,” American Journal of Jurisprudence 32 (1987): 8.
48 Murphy, “An Ordering of Constitutional Values,” p. 757.
49 Sanford Levinson, Constitutional Faith (Princeton: Princeton University Press, 1988).
50 Sotirios Barber, On What the Constitution Means (Baltimore: Johns Hopkins University Press, 1984), p. 43.
51 William F. Harris II, The Interpretable Constitution (Baltimore: Johns Hopkins University Press, 1993), chap. 4.
52 109 S. Ct. 2533 (1989)
53 110 S. Ct. 2404 (1990).
54 Jeffrey Rosen, “Was the Flag Burning Amendment Unconstitutional?” Yale Law Journal 100 (1992): 1073.
55 Ibid. For the most comprehensive treatment of the flag-burning issue, see Robert J. Goldstein, “The Great 1989–1990 Flag Flap: An Historical, Political, and Legal Analysis,” University of Miami Law Review 45 (1990): 19–106. See also Murray Dry, “Flag Burning and the Constitution,” Supreme Court Review (1991): 69, and Mark Tushnet, “The Flag-Burning Episode: An Essay on the Constitution,” University of Colorado Law Review 61 (1990): 39.
56 I reject Akhil Reed Amar’s argument that the Constitution can be amended by popular referenda not specified in the Constitution. For Amar’s views, see “Philadelphia Revisited,” p. 1043. For critiques of Amar’s view, see John R. Vile, “Legally Amending the United States Constitution: The Exclusivity of Article V’s Mechanisms,” Cumberland Law Review 21 (1990–91): 271, and David R. Dow, “When Words Mean What We Believe They Say: The Case of Article V,” Iowa Law Review 76 (1990): 1.
57 Another article, James McBride, “Is Nothing Sacred? Flag Desecration, the Constitution, and the Establishment of Religion,” St. John’s Law Review 65 (1991): 322, argues on the basis of arguments advanced by Emile Durkheim that “if the [flag-burning] amendment were passed, its imposition on the Bill of Rights would introduce irreconcilable tensions into the Constitution: freedom of religion would be encroached upon by the establishment of an American civil religion, identified with the nation-state.” McBride does not, however, indicate precisely whether this would be unconstitutional.
58 Eric A. Isaacson, “The Flag Burning Issue: A Legal Analysis and Comment,” Loyola of Los Angeles Law Review 23 (1992): 591.
59 Isaacson “The Flag Burning Issue,” p. 593. I do not see how the language of the First Amendment is any more prohibitive than that of the language restricting Congress in Article I, section 9 of the Constitution or restricting the states in Article I, section 10. The second clause of Article I, section 9, for example, says, “No Bill of Attainder or ex post facto Laws shall be passed.”
60 Isaacson, “The Flag Burning Issue,” p. 595.
61 Ibid., p. 599.
62 See Schenck v. United States, 249 U.S. 47 (1919).
63 Ralph A. Rossum and G. Alan Tarr, American Constitutional Law 3d. ed. (New York: St. Martin’s Press, 1991), p. 343.
64 See Hugo L. Black, A Constitutional Faith (New York: Alfred A. Knopf, 1969), pp. 43–63. Black’s authority would not on this point help Isaacson, however, because Black did not believe that the First Amendment extended protection to symbolic speech. See his dissent in Tinker v. Des Moines School District, 393 U.S. 503 (1969).
65 Isaacson, “The Flag Burning Issue,” p. 591.
66 Ibid., pp. 593–95.
67 Indeed, one commentator has argued that the First Amendment was designed to expand the amending power. See Amar, “Philadelphia Revisited,” pp. 1058–60.
68 In proposing the Bill of Rights to the states, the first Congress used the following terminology: “Resolved, by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both houses concurring, that the following articles be proposed to the legislatures of the several states, as amendments to the Constitution of the United States, all or any of which articles, when ratified by three fourths of the said legislatures, to be valid, to all intents and purposes, as part of the said Constitution, namely—”
This language is followed by another statement, often still recorded in prefaces to the Bill of Rights, which refers to “Articles in Addition to, and Amendment of, the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the Fifth Article of the original Constitution.” See Philip B. Kurland and Ralph Lerner, eds., The Founders’ Constitution (Chicago: University of Chicago Press, 1987), 5:40.
69 When other amendments in the Constitution refer to themselves, they use the terminology of “article,” “amendment,” “article of amendment,” or “article … as an amendment.” See U.S. Constitution, amendments 13, 14, 15, 17, 18, 19, 20, 21, 22, 23, 24, and 26. Amendments such as the Thirteenth, Fourteenth, and Fifteenth, which have specific enforcement clauses, clearly appear to distinguish the articles of amendment from other “legislation” adopted under their authority.
70 Akhil R. Amar, “The Bill of Rights as a Constitution,” Yale Law Journal 100 (1991): 1137–43. I raise this point to indicate that, originally the First Amendment had no special physical placement within the Bill of Rights that might have indicated that its function was significantly different from other provisions in the Bill of Rights.
71 “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” U.S. Constitution, Amendment 9. See Randy Barnette, ed., The Rights Retained by the People: The History and Meaning of the Ninth Amendment (Fairfax, Va.: George Mason University Press, 1989). See also John H. Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge, Mass.: Harvard University Press, 1980), pp. 34–40.
72 Rosen, “Was the Flag Burning Amendment Unconstitutional?” p. 1079.
74 Ibid., p. 1086.
73 Ibid., p. 1082.
75 Ibid.
76 Ibid., p. 1087. Rosen is obviously “tracking” the language of the Ninth Amendment.
77 Ibid., p. 1088–89.
78 Ibid., p. 1092. By Rosen’s analysis, it would appear that his model amendment should also include reference to the Fourteenth Amendment.
79 Ibid.
80 Ibid., p. 1073, n. 5.
81 Ibid., p. 1074, n. 6.
82 Herbert Storing, What the Anti-Federalists Were For (Chicago: University of Chicago Press, 1981), p. 67.
83 For indications that these were the kinds of concerns influencing those who introduced the Ninth Amendment, however, see Barnette, The Rights Retained by the People. I have treated the Ninth Amendment in A Companion to the United States Constitution and Its Amendments (Westport, Conn.: Praeger, 1993), chap. 9.
84 Abraham Lincoln thus noted that “the right of revolution, is never a legal right.… At most, it is but a moral right, when exercised for a morally justifiable cause. When exercised without such a cause revolution is no right, but simply a wicked exercise of physical power.” Quoted by James M. McPherson, Abraham Lincoln and the Second American Revolution (New York: Oxford University Press, 1990), p. 28. The analysis in Luther v. Borden, 7 Howard 1 (1849), suggests some of the difficulties with the view that the right of revolution may be enforced by the courts. For further analysis, see John R. Vile, “John C. Calhoun on the Guarantee Clause,” South Carolina Law Review 40 (1989): 669.
85 Goldstein, “The Great 1989–1990 Flag Flap,” p. 98, notes, however, that dissenting opinions were more moderate in the second opinion.
86 It is worth noting that, were a flag-burning amendment to be adopted, it would be after two clear Supreme Court decisions on the subject, making the notion of a “second chance” especially problematic.
87 I have not seen the Ninth Amendment explained in this fashion, but I believe this is a plausible interpretation. This would arguably make the Ninth Amendment somewhat redundant with the due process clauses of the Fifth and Fourteenth Amendments, but not significantly more so than a number of other possible interpretations.
88 Charles Press and Kenneth VerBurg, State and Community Governments in a Dynamic Federal System, 3d ed. (New York: Harper Collins Publishers, 1991), pp. 266–68.
89 A persistent criticism that has been made of American government, particularly by those who would prefer a different constitution, is that it fails to provide the same vigor and accountability as rival parliamentary models. For an examination of these and other such criticisms, see John R. Vile, Rewriting the United States Constitution: An Examination of Proposals From Reconstruction to the Present (New York: Praeger, 1991). For a particularly vivid description of some of the obstacles to effective and representative lawmaking in Congress, see Amar, “Philadelphia Revisited,” pp. 1080–85. See also Donald Lutz’s contribution to this volume, which emphasizes the extraordinary difficulty of amending the U.S. Constitution.
90 For questions about the usefulness of this maxim of judicial restraint, see Martin H. Redish, The Federal Courts in the Political Order: Judicial Jurisdiction and American Political Theory (Durham, N.C.: Carolina Academic Press, 1991), pp. 87–109.
91 The Eleventh Amendment reversed the Court’s opinion in Chisholm v. Georgia, 2 U.S. 419 (1793); the Fourteenth Amendment overturned Dred Scott v. Sandford, 60 U.S. 393 (1857); the Sixteenth Amendment overturned Pollock v. Farmers’ Loan & Trust Company, 158 U.S. 601 (1895); and the Twenty-sixth Amendment modified the result that would have otherwise prevailed in Oregon v. Mitchell, 400 U.S. 112 (1970).
92 For texts of those amendments that were not ratified, see George Anastaplo, The Constitution of 1787 (Baltimore: Johns Hopkins University Press, 1989), pp. 298–99.
93 See, for example, Harvey Wish, ed., Ante-Bellum: Writings of George Fitzhugh and Hinton Rowan Helper on Slavery (New York: Capricorn Books, 1960).
94 For identification of the amending process with popular sovereignty, see Lester Orfield, The Amending of the Federal Constitution (Ann Arbor: University of Michigan Press, 1942), and Max Radin, “The Intermittent Sovereign,” Yale Law Journal 39 (1930): 514.
95 Murphy, “Consent and Constitutional Change.” See also Lawrence G. Sager, “The Incorrigible Constitution,” New York University Law Review 65 (1990): 893.
96 Bickel, The Least Dangerous Branch, p. 16.
97 In justifying judicial review, Alexander Hamilton argued that such review did not assume the superiority of the judicial branch but rather “it only supposes that the power of the people is superior to both, and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws rather than by those which are not fundamental.” Alexander Hamilton, James Madison, and John Jay, The Federalist Papers, ed. Clinton Rossiter (New York: New American Library, 1961), p. 468.
98 As Justice White argued in Bowers v. Hardwick, 478 U.S. 186 (1986), “The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution.” Robert Bork approvingly quotes this comment in The Tempting of America (New York: Free Press, 1990), p. 119.
99 See Eulis Simien, “It Is a Constitution We Are Expounding,” Hastings Constitutional Law Quarterly 18 (1990): 67.
100 Alternatively, Clement Vose has proposed that Congress conduct a three-day conference after proposing amendments to consist of delegates from the fifty states who would learn of arguments for and against the proposal. See Constitutional Change: Amendment Politics and Supreme Court Litigation Since 1900 (Lexington, Mass.: D. C. Heath, 1972), p. 371.
101 Writing about the electoral college, Saul Brenner argues that “the Constitution should not be amended to guard against remote possibilities.” Brenner, “Should the Electoral College Be Replaced by the Direct Election of the President?” PS 17 (Spring 1984): 247.