Amendments are the Key to Avoiding Constitutional Extinction
Every Fourth of July, Americans celebrate independence, but it might be more significant, more pregnant with meaning, to celebrate amendment — the writing, ratifying and especially the amending of constitutions. Except lately there hasn’t been much to celebrate, with amendment having become a lost art. And a constitution that can no longer be amended is dead.
The U.S. Constitution hasn’t been meaningfully amended since 1971. Congress sent the Equal Rights Amendment to the states for ratification in 1972, but its derailment rendered the Constitution effectively unamendable. It’s not that people stopped trying. Conservatives, especially, tried.
In 1982, President Ronald Reagan endorsed a balanced-budget amendment. In the 1990s, Republicans proposed anti-flag-burning amendments, fetal-personhood amendments and defense-of-marriage amendments. Lately, amendments have been coming from the left. “Nationally, Democrats generally wish to amend constitutions and Republicans to preserve them,” The Economist proclaimed last month, on the same day that California’s Democratic governor, Gavin Newsom, proposed a federal constitutional amendment that would regulate gun ownership. “I don’t know what the hell else to do,” he said, desperate.
The consequences of a constitution frozen in time in the age of Evel Knievel, “Shaft” and the Pentagon Papers are dire. Consider, for instance, climate change. Members of Congress first began proposing environmental rights amendments in 1970. They got nowhere. Today, according to one researcher, 148 of the world’s 196 national constitutions include environmental protection provisions. But not ours. Or take democratic legitimacy. Over the last decades, and beginning even earlier, as the political scientists Daniel Ziblatt and Steven Levitsky point out in a forthcoming book, “The Tyranny of the Minority,” nearly every other established democracy has eliminated the type of antiquated, antidemocratic provisions that still hobble the United States: the Electoral College, malapportionment in the Senate and lifetime tenure for Supreme Court justices. None of these problems can be fixed except by amending the Constitution, which, seemingly, can’t be done.
It’s a constitutional Catch-22: To repair Senate malapportionment, for instance, you’d have to get a constitutional amendment through that malapportioned Senate.
While it’s true that Americans can no longer, for all practical purposes, revise the Constitution, they can still change it, as long as they can convince five Supreme Court justices to read it differently. But how well has that worked out? That’s what happened, beginning in the early 1970s, with abortion and guns, the north and south poles of America’s life-or-death politics, in which either abortion is freedom and guns are murder or guns are freedom and abortion is murder. Chances are that if you like the current court, you like this method of constitutional change and if you don’t like the current court, you don’t like this method. But either way, it’s not a great boon to democracy.
Troublingly, our current era of unamendability is also the era of originalism, which also began in 1971. Originalists, who now dominate the Supreme Court, insist that rights and other ideas not discoverable in the debates over the Constitution at its framing do not exist. Perversely, they rely on a wildly impoverished historical record, one that fails even to comprehend the nature of amendment.