President Versus Precedent

Cass R. Sunstein teaches law at the University of Chicago and is the author of "Why Societies Need Dissent" (Harvard University Press, 2003).

In declaring his support for a constitutional amendment that would forbid same-sex marriage, President Bush is repudiating more than 200 years of American theory and practice. His proposal is radically inconsistent with the nation’s traditions. Whatever it is, there is one thing that it is not: conservative.

Since its ratification in 1789, the Constitution has been amended only 27 times. Nearly every amendment falls into one of two categories. Most of them expand individual rights. The rest attempt to fix problems in the structure of the national government itself.

The first 10 amendments, ratified in 1791, make up the Bill of Rights, which guarantees liberties ranging from freedom of speech, assembly and religion to protection of private property and freedom from cruel and unusual punishments.


In the aftermath of the Civil War, three new amendments were ratified: to prohibit slavery, guarantee African Americans the right to vote, and assure everyone the “equal protection of the laws.” During the 20th century, several amendments expanded the right to vote -- granting that right to women (1920) and to 18-year-olds (1971), forbidding poll taxes (1964) and allowing the District of Columbia to be represented in the electoral college (1961).

Many other amendments fix problems in the structure of the government. An early amendment, ratified in 1804, specifies the rules for the operation of the electoral college. In 1913, the Constitution was changed to require popular election of senators; in the same year, an amendment authorized Congress to impose an income tax.

A 1951 amendment, responding to Franklin Roosevelt’s four terms as president, bans the president from serving more than two terms. A closely related amendment from 1967 specifies what happens in the event that the president dies or becomes disabled while in office.

Do any amendments fall outside of these categories? Just two, and they’re not impressive precedents. In 1919, the 18th Amendment prohibited the sale of “intoxicating liquors.” The 21st Amendment repealed the 18th.

What accounts for our remarkable unwillingness to amend the Constitution except to expand rights and to fix structural problems?

The simple answer is that from the founding period, Americans have prized constitutional stability. We have agreed that the document should not be amended merely to incorporate the majority’s position on the great issues of the day. For those issues, we rely on the federal system and on democracy. We fear that large-scale constitutional debates could lead not only to ill-considered change but could also split and polarize the country. When we differ, we use the other institutions that we have, not constitutional reform.

American presidents have shown a remarkable appreciation of these points, and of presidential responsibilities to the founding document itself. Though repeatedly rebuffed by a right-wing Supreme Court, Roosevelt did not favor amending the Constitution. In defending his New Deal, he appealed instead to Congress, the public and the states. Lyndon Johnson argued for dramatic new laws to protect civil rights and to carry out his “war on poverty,” but he left the nation’s charter alone.

Although he was appalled by a left-wing Supreme Court, Richard Nixon emphasized not constitutional change but ordinary political processes to steer the nation in the directions that he favored. Ronald Reagan may have been the most influential president of the second half of the 20th century, but he didn’t seek to change a single word of the Constitution.

In fact, Nixon and Reagan repeatedly emphasized the importance of relying on the federal system for resolving the most contentious issues. They often criticized “activist judges” for protecting criminal defendants and taking over school systems. But when Nixon and Reagan did so, they meant to protest the use of the national Constitution, by either left or right, to forbid experimentation at the state and local levels.

In our history, there is no parallel to Bush’s call for a constitutional amendment banning same-sex marriage. (Prohibition is by far the closest analogy.) And even if we agree that such marriages are objectionable, what is the problem for which constitutional change is the solution? No federal judge has said -- not once -- that the existing Constitution requires states to recognize same-sex marriages.

At the state level, there are ample channels for continuing deliberation and debate. True, the Supreme Judicial Court of Massachusetts has ruled that the state constitution forbids Massachusetts to refuse to give marriage licenses to same-sex couples. But even there, well-established processes are now underway for amending the state constitution, if the citizens wish, to overturn the court’s decision. In the overwhelming majority of states, there is no effort to redefine marriage to include same-sex couples.

Although acknowledging that constitutional amendment “is never to be taken lightly,” Bush tried to disguise the radicalism of his proposal by announcing, blithely, that the “amendment process has addressed many serious matters of national concern.” But our tradition has been far more specific, wise and careful than that.

Almost all “serious matters of national concern” have been handled through ordinary processes, not through constitutional change. Bush has proposed a reckless departure from our deepest traditions.