The Nation : Treating the U.S. Constitution as a Work in Progress

Here are my two favorite trivia questions about the Constitution:

* Name the only provision of the Constitution that cannot be altered by the amendment procedures of Article V?

* Who is Gregory Watson, and what ties him to James Madison, chief framer of the Constitution and Bill of Rights?

Before we get to the answers, let us note that the U.S. Senate’s failure to pass the balanced-budget amendment last summer did not end the open season on efforts to amend the Constitution. Other amendments are still afloat in Congress, including one defeated just last week, to prohibit flag burning; another to restore school prayer; a third to establish fertilization as the point where life begins; another to make English the official language. Nor is it difficult to imagine other pet projects of the new right taking the form of amendments--especially if the GOP consolidates its hold on Congress and the state legislatures in the 1996 elections.

Only 27 amendments to the U.S. Constitution have been approved in the two centuries since its ratification in 1788--out of more than 10,000 proposals introduced in Congress. But it could be that Article V is about to undergo a new birth of freedom. Coming years may see national politics follow a course that has largely been confined to the states, where--as every politically literate Californian knows--constitutions are meant to be amended whenever a suitable whim tickles the voters’ fancy. The volatility of our politics, and perhaps the rise of electronic democracy, may make Article V a more attractive option for political entrepreneurs than in the past.

With this in mind, answers to the two trivia questions are not so trivial.

Only one provision of the Constitution lies beyond the reach of Article V: the clause guaranteeing each state an equal vote in the Senate. This provision was locked into the Constitution at the end of the Federal Convention, when delegates from the small states became nervous that the so-called Great Compromise they had struggled to obtain could be undone by a future amendment. Thanks to their foresight, we now live under a regime where the empty landscapes, rocks and trees of such mistakes of geography as North Dakota and Wyoming will seemingly forever retain the same equal representation in the Senate as California. But every other clause of the Constitution is subject to amendment--as it should be.

Of the existing amendments, none has a more bizarre history than the most recent, the 27th. This is where Watson comes in. Watson was the obscure Texas legislative aide who, as a college student, learned that two of the 12 amendments submitted by the First Congress to the states in 1789--at Madison’s urging--had never been ratified. Watson waged a 10-year campaign to secure the additional states needed to make one of these proposals--prohibiting members of Congress from receiving a pay raise until a new election of the House has taken place--the law of the land.

Most constitutional scholars treated Watson’s campaign as something between a misguided joke and a monstrosity. Their concern was not that members of Congress might occasionally deserve a quick infusion of cash. Rather, they thought that allowing an amendment to circulate in constitutional limbo for two centuries was a terrible model for the process of deliberation that something as serious as revising the Constitution should require. But when Michigan, New Jersey and Illinois ratified in May, 1992, Madison’s original proposal was brought safely to harbor after 203 years.

There are two reasons to take the epic journey of the 27th Amendment seriously. First, this demonstrates it may be easier than you think to surmount the high barrier of Article V, which normally requires a two-thirds vote of both houses of Congress and approval by three-quarters of the state legislatures for an amendment to be adopted. With the right issue--one with a superficial popularity, or that appears to be a panacea--it may be possible to fashion a quick consensus in favor of constitutional change.

Second, and more important, the political temptation to make constitutional amendments a vehicle for exploitation of “wedge issues” may be growing more alluring. Wedge issues are emotionally charged matters that enable candidates or parties to galvanize a crucial segment of the electorate by establishing a clear distinction between their virtues and the vices of adversaries. In California, Proposition 187 was just such an issue, and the campaign against affirmative action, though now lagging, may be another.

If the voters’ preferences can be expressed as an approved constitutional amendment, their supporters reap a dual victory. Not only do they gain the electoral dividends that wedge issues pay by mobilizing voters; if successful, they also lock the policies in place, beyond reach of legislative judgment. With the current pervasive mistrust of government, this is a powerful advantage.

This kind of politics is already flourishing in many states--as Californians know. But whether it can make the leap to the national level remains unknown. Barriers to amendments at the national level are far higher than in the states--largely because Madison and his fellow framers in Philadelphia were convinced it would never be a good idea to submit constitutional questions to popular decision, especially those that were the offspring of issues that stirred “the passions” and “not the reason of the public.”

True, Madison preferred the amendment process of Article V to the alternative of allowing judicial interpretation and political precedent to impose constitutional change. But he insisted that amendments be the product of deep reflection and experience--not a response to impulses of public opinion or the demagoguery of popular leaders. His concern was that a Constitution too easily amended would lose the respect necessary to maintain “the requisite stability” all governments should provide.

By and large, the national amendment process has probably satisfied Madison’s criteria. Set aside Watson’s 27th Amendment and the two expended to impose and repeal Prohibition, and the remaining 24 can be divided into several broad categories. The Bill of Rights and its near successor, the 11th Amendment, were adopted to allay many of the doubts and concerns expressed during the ratification debates of 1787-1788. Three other amendments were adopted to validate the meaning of the Civil War: the 13th abolished slavery; the 14th laid a constitutional foundation for the equal rights of emancipated slaves, and the 15th prohibited “race, color or prior condition of servitude” from being used to deny the right to vote. The 24th Amendment abolishing the poll tax was an extension of this, part of the second much-needed Reconstruction of the South.

Five amendments (the 12th, 20th, 22nd, 23rd and 25th) are concerned with the election and tenure of the president and vice president--which testifies to the great difficulties the framers faced in designing the presidency. Another three amendments can be dubbed the democratic amendments, providing for the popular election of senators and extending suffrage to women and 18-year-olds. Finally, there is everyone’s favorite, the 16th, making income tax legal.

Whatever else might be said about these amendments, they can hardly be described as trivial, or as responses to ephemeral mood swings of the body politic, much less as extensions of the politics of “wedge issues.” It may well be that the recent flurry of interest in amendments will prove a passing fancy--no more durable than the momentary passions that brought the introduction of those 10,000 forgotten proposals.

But there have been enough changes in the structure of U.S. politics recently to raise a more disturbing prospect. The distinction between the high standards for an amendment required at the national level of politics and the more casual norms of the states may be eroding. And here, to judge from the recent history of the politics of amendments in the states, we may have cause for concern.