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.
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.
A written constitution ratified by the people — and subject to amendment by the people — is an American invention. In the 18th century, people who drafted constitutions and commented on constitutionalism came to agree that if such a strange, new and fragile thing as a written constitution were to endure, it would, as time passed, need to be both repaired and improved, mended and amended. To amend meant, at the time, to correct a fault; to repair an omission; to fix what’s broken; or to improve, in a moral sense: to make something better. The word shares a root, four of its five letters, and almost the entirety of its meaning, with the verb “mend.” You can mend a dress but you can also mend your ways; you can amend your will but, for your errors, you can also make amends. All this was contained within the philosophy of amendment.
“We have every opportunity and every encouragement before us, to form the noblest purest constitution on the face of the earth,” Thomas Paine wrote in “Common Sense,” published in January 1776. The states and the new federal government began writing constitutions that spring. Delegates to the Continental Congress who drafted what became the Declaration of Independence were also working on state constitutions: Thomas Jefferson was drafting the preamble for the Virginia Constitution and John Adams was involved in the drafting of the constitutions of Virginia and New Jersey while avidly following the constitutional goings-on in New Hampshire, South Carolina and Maryland. (...)
Amendment is a constitutional mechanism necessary to avoid insurrection. The U.S. Constitution was itself an act of amendment, written in 1787 because the Articles of Confederation were technically amendable but, for all practical purposes, not. At the constitutional convention in Philadelphia, the Virginia delegate George Mason, pointing out that everyone knew the Constitution that they were drafting was imperfect, argued that “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.”
by Jill Lepore, NY Times | Read more:
Image: Rozalina Burkova[ed. Happy 4th.]
