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The (myth of un)amendability
of the US Constitution and
the democratic component of
constitutionalism
Vicki C. Jackson*
The article explores certain claims about the amendment process of the US Constitution.
Empirically, it argues that the difficulty posed by formal procedures in obtaining textual
amendments of the US Constitution is overstated, if one looks to history and to analogous
constitutional requirements for override of presidential vetoes. It suggests that the low amendment rate may result not only from its formal procedures, and exaggerated estimates of their
difficulty, but also from ideological or emotional opposition to amendment, as opposed to
other methods of legal change. As a normative matter, it argues that, notwithstanding important arguments for caution in seeking constitutional amendment, a constitution that is truly
not amendable by its own formal procedures, that relies on indefinitely long tenures for its
highest court, and that is committed to judicial supremacy in constitutional interpretation, is
in real tension with the democratic component of democratic constitutionalism.
1. Introduction
Constitutions are sometimes thought of as embodying the “will” of a particular
people. The United States Constitution is widely referred to for its founding declaration, “We the people . . .,” emblematic of a form of popular self-sovereignty. Yet in
recent decades some scholars and political actors have come to believe that the US
Constitution is no longer capable of being amended through the Article V amendment
process.1 It becomes difficult to see how popular consent can be invoked on behalf of
a constitution’s legitimacy if, according to this “impossibility” view, the Constitution
*
1
Thurgood Marshall Professor of Constitutional Law, Harvard Law School. Email: [email protected].
edu. With thanks to Richard Albert, Rosalind Dixon, Mark Tushnet, and Marge Baker for very helpful
comments, and to Lauren Davis, Kate Epstein, and Noah Marks for helpful research assistance.
See, e.g., Sanford Levinson, Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We
the People Can Correct It) (2006); Rosalind Dixon, Updating Constitutional Rules, 2009 Sup. Ct. Rev. 319,
319 (2010); Richard H. Fallon, Jr., American Constitutionalism, Almost (But Not Quite) Version 2.0, 65 Me.
L. Rev. 77, 92 (2012).
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can no longer be amended by the organized political action of its constituent people.
Other scholars and political actors argue against too ready resort to constitutional
amendment,2 and urge a presumption against formal amendment except in very
extraordinary circumstances. We might call this the “textual veneration,” or constitutional reverence, view.
This article suggests that political and constitutional actors in the United States
may be too reluctant to resort to popular democratic processes to effect formal constitutional change, and too reliant on seeking constitutional change through other
means, especially adjudication and changes in judicial appointments. Reluctance to
consider constitutional amendment through Article V procedures raises two different
kinds of questions, one empirical, the other normative.
Section 2 discusses empirical claims about the relative difficulty of amending the US
Constitution, challenging claims of impossibility by reference to the history of amendment and of congressional overrides of presidential vetoes under a similarly difficult
super-majority voting rule. It suggests that sociocultural beliefs in the difficulty of
amendment, as well as the impact of normative arguments and cultural attitudes
against frequent constitutional change, may contribute to the difficulty of amendment today. Claims of impossibility fail to take into account the self-reinforcing character such claims:3 it is possible that belief in the near impossibility of amendment
contributes to the US constitutional culture’s disposition not to amend. Such a belief
is reinforced by normative arguments that the Constitution’s text should not be “tinkered” with and with the development of habits of constitutional “veneration”. Thus,
I argue, the claims of impossibility, based on the difficulty of the formal procedures,
are overstated: amending the US Constitution is difficult but not impossible.
Section 3 addresses normative arguments about amendment, arguments which
may assume special force in response to particular partisan divides. After discussing
arguments against resort to amendment, it argues that over-reliance on interpretation
and change in the judiciary as the sole methods for constitutional change undervalues
the significance of more active forms of public consent for constitutional legitimacy;
too strong a convention against formal textual amendment saps the democratic legitimacy of the formal text. To the extent that constitutions depend for their legitimacy
on several sources, including democratic consent, unwillingness to use constitutional
processes for amendment raises questions of constitutional legitimacy, even if public
consent to adjudication provides a distinctive (albeit more indirect) form of legitimacy.
2
3
See, e.g., Kathleen M. Sullivan, Constitutional Amendmentitis, Am. Prospect (Dec. 19, 2001), available at
http://www.prospect.org//cs/articles?article=constitutional_amendmentitis.
For a related point, that constitutional powers not used over a long period of time will “atrophy,” and will
come to seem illegitimate to use, or “unexercisable,” see Adrian Vermeule, The Atrophy of Constitutional
Powers, 32 Oxford J. Legal Stud. 421, 422–423 (2012) (arguing that the failure to use a constitutional
power over a long period can become a “political precedent heuristic, according to which an attempt to
revive the power at a later time amounts to an illegitimate attempt to change the rules of the political
game”); cf. Richard Albert, Constitutional Amendment by Constitutional Desuetude, 62 Am. J. Comp. L. 641
(2014) (arguing that constitutions can be amended by desuetude). I do not claim that amendment is currently regarded as illegitimate in the United States, but do raise concerns about the effects of atrophy in
the use of the amendment power to address major constitutional concerns.
The (myth of un)amendability of the US Constitution
577
Section 4 concludes with some reflections on the implications of this analysis more
generally for comparative constitutional study.
2. The (myth of un)amendability of the US Constitution
The US Constitution is not easily amended. Under Article V, amendments initiated
by the Congress—the only method thus far used—require a two-thirds vote of both
houses to propose an amendment and ratification by three-fourths of the states, either
in their legislatures or by special convention. Not surprisingly, the US Constitution has
been less frequently amended than most other national constitutions—and much less
frequently amended than many state-level constitutions in the United States.4 The US
Constitution is also one of the most long-lived of constitutions in the world. Its endurance is sometimes attributed to its difficulty of amendment, coupled with an approach
to interpretation that has proven flexible over time.
Yet Article V has also been subject to critique for its rigidity, as inconsistent with
democratic legitimacy. Indeed, the US Constitution has been sharply criticized for not
allowing sufficient flexibility for democratic majorities to amend the Constitution’s
text under Article V.5 And it has been characterized not only as making change too
difficult but as making such change almost impossible, at least if the change is significant: Sanford Levinson, for example, refers to Article V as “impermeable,” and as
making constitutional amendment “practically impossible.”6 Below I consider the difficulty posed by the formal rules of the Constitution, by over-estimates of those difficulties, and by ideological or cultural hesitation to employ amendment as compared
to other forms of legal change.
2.1. The amendment rules, their history, and the relevance of
presidential veto overrides in understanding the difficulty they pose
The difficulty of amendment can be overstated and can become self-fulfilling, in ways
that ignore the important history of Article V amending processes as parts of larger
constitutional changes in the United States. As even Sanford Levinson acknowledges,
the Constitution, though difficult, is not impossible to amend and, at times, it has been
amended with amazing speed. The 26th Amendment, changing the voting age to 18,
was proposed by Congress very quickly after the Court’s decision in Oregon v. Mitchell,7
and was ratified by the requisite number of states within three months.8 The 24th
Amendment, eliminating the poll tax, was also relatively quickly ratified in the 1960s,
4
7
8
5
6
See Donald S. Lutz, Toward a Theory of Constitutional Amendment, in Responding to Imperfection 237, 247, 261
(Sanford Levinson ed., 1995) (describing the US Constitution as the second most difficult to amend in the
world, after Yugoslavia’s); Zachary Elkins, Tom Ginsburg, & James Melton, The Endurance of National Constitutions
101 (2009) (describing the United States as “one of the most inflexible” constitutions in the world).
See, e.g., Joel Colón-Ríos, Weak Constitutionalism 66 (2012); Levinson, supra note 1.
Levinson, supra note 1, at 159, 160.
Oregon v. Mitchell, 400 U.S.112 (1970)
David Strauss, The Irrelevance of Constitutional Amendments, 114 Harv. L. Rev. 1457, 1489 (2001).
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being proposed by Congress in 1962 and ratified in 1964. At those times, the United
States had the same 50 states it currently does.
The relative difficulty in amendment is a general feature of federal constitutions.
Levinson and others have relied on Donald Lutz’s seminal work of the 1990s to
show that, among the “selected” countries analyzed,9 the US has the most difficult
amending formula. But it is worth noting that, in Lutz’s study, bicameral approval or
initiation requirements—as are likely to be found in federal constitutional states—
generally increased the difficulty rating of amending schemes.10 Lutz’s scale rated
countries as varying in amendment difficulty from 0.8 percent (Austria) to 5.60
percent (Yugoslavia). The United States’ formal procedure was rated as 5.10 percent—not that much more difficult than Switzerland (4.75%), Venezuela (4.75%),
Australia (4.70%), and Germany, Spain, and Nigeria (each at 4.60%). Requirements
for bicameral approval of amendments by as much as a two-thirds vote of each house
are not uncommon in federal and unitary systems.11 Some later studies suggest that
it is requirements of bicameral approval—or of multiple veto point and multiple decisions—rather than the federal aspect of the state as such that contributes to constitutional rigidity through formal amending processes.12
See Lutz, supra note 4. Lutz’s sample consisted of only thirty countries, see id. at 261, 263, not including,
for example, Canada (where some would suggest that significant amendment is now virtually impossible). Cf., e.g., Reference re Senate Reform, Sup. Ct. Can. (Apr. 25, 2014) (holding that abolition of the
Senate requires unanimous approval of all the provinces and that changes, e.g., to the term of Senators,
cannot be made by the unilateral amending procedure relating to the federal government because the
provinces’ interests would be engaged).
10
Lutz, supra note 4, at 258–259, table 10.
11
See European Commission for Democracy Through Law (Venice Commission), Report on Constitutional
Amendment, at 10 & n.35 (Study No. 469/2008, Strasbourg, Jan. 19, 2010) [hereafter “Venice
Commission Report”] (identifying Belgium, Germany, Japan, the Netherlands, Poland, Romania, and
Russia as ordinarily requiring a two-thirds majority in each house, and noting that Spain requires a twothirds majority in each house for a major revision of the constitution). Japan and Romania also require
approval by a popular referendum. Id., at 11 n.46. For helpful typologies of the wide range and combinations of amending procedures that exist among the world’s constitutions, see, e.g., Lutz, supra note 4,
at 260–266 (categorizing both U.S. state and foreign constitutions by, for example, required legislative
majorities, degrees of legislative supremacy in the process (including initiation requirements), requirements for double votes after intervening elections, presence of required referendum, and length); see also
Edward Schneier, Crafting Constitutional Democracies: The Politics of Institutional Design 221–225 (2006)
(noting some “basic patterns” in constitutional amendment procedures, including that in only nine
countries is a simple legislative majority sufficient and that the modal majority required is two-thirds of
the legislature); Jon Elster, Ulysses Unbound: Studies in Rationality, Precommitment and Constraints 101–104
(2000) (noting six basic varieties of hurdles to amendment—“absolute entrenchment” or unamendability; supermajority required in parliament; higher quorum required than for ordinary legislation; delays;
subnational ratifications; referendum requirements—that can be combined in many ways); see also JanErik Lane, Constitutions and Political Theory 41–44 (2d ed. 2011); Arend Lijphart, Patterns of Democracy
47–48, 206–219 (2d ed. 2010); Richard Albert, The Structure of Constitutional Amendment Rules, 49
Wake Forest L. Rev. 913, 939–946 (2014).
12
See, e.g., John Ferejohn, The Politics of Imperfection: The Amendment of Constitutions, 22 Law & Soc. Inquiry
501, 523 (1997) (reanalyzing Lutz’s data to conclude that it is “the requirement of special majorities or
separate majorities in different legislative sessions or bicamerality” that is the “key variable to explaining amendment rates” and further finding that ratification requirements, “whether involving states or
9
The (myth of un)amendability of the US Constitution
579
Under existing procedures, it is not at all clear that the US amendment process
should be regarded as “impossible” or even “close to impossible.” According to John
R. Vile, a leading scholar of the US amendment process, of the thirty-three amendments that have been proposed by a two-thirds vote of both Houses of Congress, only
six have failed to be enacted.13 This record might be read to suggest that the major hurdle for amendments is the Congress, since the great majority of proposals that emerge
are passed. How difficult is it to obtain agreement of two-thirds of both houses on
proposals? It is not easy, to be sure. But if we consider the other situation in which the
Constitution requires action by two-thirds of both Houses of Congress, the two-thirds
of both houses requirement does not appear to be an “impermeable” barrier.
To propose an amendment to the states requires two-thirds of both houses; to
override a presidential veto also requires two-thirds of both houses. There have been
approximately 110 congressional overrides of presidential vetoes since 1789 (including 15 during the highly confrontational presidency of Andrew Johnson).14 Although
this number is under 5 percent of the total number of presidential vetoes, even this
data suggests that it is far from impossible to obtain agreement from the two houses
by a two-thirds vote on substantive issues. Moreover, more meaningful figures focus
on only those “regular” vetoes that were not “pocket vetoes” (which do not go back to
Congress for possible override),15 and on public (rather than private) bills.16 Focusing
13
14
15
16
a popular referendum,” had no significant impact on amendment rates); Bjorn Erick Rasch & Roger
D. Congleton, Amendment Procedures and Constitutional Stability, in Democratic Constitutional Design and
Public Policy 319, 333–335 (Roger D. Congleton & Birgitta Swedenborg eds., 2006) (amendment rates
depend on “the number of governmental veto players” and number of “veto points”); Marta Arretche,
Federalism, Bicameralism and Institutional Change: General Trends and One Case-study, 4(2) Brazilian Pol. Sci.
Rev. 10 (2010) (in study of 32 countries, finding bicameralism, rather than federalism as such, associated with greater rigidity; also finding that party control can overcome federalism or bicameralism as
factor in constitutional amendment if there is strict party discipline).
John R. Vile, 2 Encyclopedia of Constitutional Amendments, Proposed Amendments and Amending Issues, 1789–
2010, at 187 (2010) (noting amendments concerning (1) relation between population and representation
(1791); (2) titles of nobility for citizens (1810); (3) perpetual protection of slavery (Corwin Amendment)
(1861); (4) federal regulation of child labor (1924); (5) guaranteeing equal rights for women (ERA) (1972);
and (6) D.C. statehood (1978)). The ERA and D.C. Statehood amendments had deadlines for ratification,
which have passed. The child labor amendment did not; given the precedent of the 27th Amendment, it
remains theoretically open, but constitutional doctrine has changed so as (at least for now) to moot the
need for textual amendment. See United States v. Darby Lumber, 312 U.S. 100 (1941), overruling Hammer
v. Dagenhart, 247 U.S. 251 (1918). In theory, perhaps more proposals would come out of Congress were
subsequent ratification requirements lower, but this hypothetical is difficult to evaluate. Cf. Dixon, supra
note 1, at 342 (noting that of 11,000 proposals to amend the constitution only 27 were enacted).
Kevin R. Kosar, CRS Report for Congress, Regular Vetoes and Pocket Vetoes: An Overview (Apr. 22,
2013) (since 1789, there have been 110 overrides of presidential vetoes of legislation). According to
this report, under 5%—the figure given is 4.3%—of vetoes have been successfully overridden. (The
US Senate website agrees with the CRS report data. See http://www.senate.gov/reference/Legislation/
Vetoes/vetoCounts.htm. According to the House website, the number is 109. See http://history.house.
gov/Institution/Presidential-Vetoes/Presidential-Vetoes/).
See U.S. Const., art. 1, § 7 (describing circumstances when, because of congressional adjournment, the
President may veto a bill without sending his objections back to the Congress).
See Charles M. Cameron, The Presidential Veto, in The Oxford Handbook of the American Presidency 362,
365–370 (George C. Edwards III & William J. Howell eds., 2009) (reporting data showing that with
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on these categories of presidential vetoes of legislation likely to be of consequence and
capable of being overridden by Congress, one finds that a significantly higher percentage have been overridden. For example, a 2013 study finds that looking only at “regular vetoes” since 1961, thirty-seven out of 233 vetoes were overridden—for a rate of
15.9 percent.17 If two-thirds of both Houses of Congress can join together to override Presidential vetoes at these rates, then perhaps the requirement that two-thirds
of each House join in proposing amendments may not, by itself, be quite so large an
obstacle to proposing amendments as might be thought; and as noted, most amendments proposed by Congress have been ratified by the states.
On the other hand, there are differences between veto overrides and proposals for
amendment relating to ease of formulation,18 and prior congressional investment,19
that may make it more difficult for Congress to propose amendments than to override
vetoes. The most recent proposal for an amendment from Congress—the Equal Rights
Amendment proposed in 1972—failed to be ratified; although garnering ratifications
in 35 states, it fell three states short of the 38 needed, illustrating that the requirement of ratification by three-fourths of the states poses an additional and real obstacle. Moreover, the first 12 amendments occurred very early in US history—by 1804.
There may, then, be political phenomena that exist now, that did not exist before,
that make amendment particularly difficult.20 Indeed, to the extent that an amendment becomes a highly partisan issue, under conditions of relatively even partisan
17
18
19
20
respect to presidential vetoes of “important enactments during divided government” between 1945 and
1992, the attempted override rate was about 80%; and for all attempts to override presidential vetoes during this period, the success rate was about 45%); see also Robert J. Spitzer, The Presidential Veto: Touchstone
of the American Presidency 71–73 (1988) (presenting table showing that “7.2% of all regular, non-pocket
vetoes have been overridden,” and explaining “it makes no sense to include in the equation pocket vetoes .
. . as they are not returned to Congress”). Spitzer also separately analyzes vetoes of private bills and vetoes
of public bills between 1789 and 1987: most vetoes—1544—were of private bills, and 909 were of public bills. Of those 909, he found, “19.3% of all public-bill vetoes subject to override have in fact been overridden.” Id. at 73 (also finding only 0.8% of private bill vetoes were overridden). Cameron emphasizes, in
addition to excluding pocket vetoes and private bills from the denominator of analysis, the methodological importance of focusing (through analysis of news reports and the Congressional Record) on the most
consequential legislation. Cameron, The Presidential Veto, at 369–370.
Kosar, supra note 14, at 2-3.
When a law is vetoed, further legislative work on the language of the proposed law is not required to override the veto; proposing amendments requires the hard work of formulating language.
Key players in Congress may be deeply invested in a vetoed law, as they and their staffs would have spent
time obtaining its initial passage; there may be more forces of momentum lined up to support veto overrides than amendment proposals.
Cf. Richard L. Hasen, End of the Dialogue? Political Polarization, the Supreme Court, and Congress, 86 S.
Cal. L. Rev. 205, 209 (2013) (finding recent dramatic decline in congressional overrides of statutory
interpretations by the Supreme Court due, in part, to growing political polarization). For discussion of
recent polarization, see David W. Rohde & Meredith Barthelemy, The President and Congressional Parties in
an Era of Polarization, in Oxford Handbook of the American Presidency 289 (George C. Edwards III & William
G. Howell eds., 2009). For an argument that the increased number of member states increases the
functional difficulty of meeting the ratification requirements over that which would have existed at the
U.S. founding, see Rosalind Dixon, Partial Constitutional Amendments, 13 U. Pa. J. Const. L. 643, 652–653
(2011). For analysis of political and “zeitgeist” changes relating to amendment efforts over different time
periods, see Darren R. Latham, The Historical Amendability Of The American Constitution: Speculations On
An Empirical Problematic, 55 Am. U. L. Rev. 145 (2005).
The (myth of un)amendability of the US Constitution
581
divide, the amending formula will pose a very substantial obstacle.21 Whether in the
long run that is a good or bad effect is debatable; slowing down amendment in times
of intense partisan divides is not necessarily a bad thing.22 Overriding presidential
vetoes also appears to have varied in rate over time; the first override of a presidential
veto was not until 1845 (Tyler’s administration), and the pace of overrides has varied
with the political makeup of the Congress and the President (with thirty overrides,
for example, from the beginning of President Nixon’s term until the end of President
Reagan’s).23
A different way of looking at things is to introduce the possibility of variation in
amendment pace over different time periods.24 The United States has had several long
periods without amendments: from 1804 to 1865; from 1870 to 1913; and from
1971 to the present (with the bizarre exception of the 27th Amendment).25 Between
1865 and 1870, there were three important amendments in the wake of the Civil
War; and between 1913 and 1971 there were eleven amendments. We may not, then,
know the extent to which the Article V process is “dead,” or simply quiescent, as it has
been in the past. There is at least a possibility that enacting amendments makes enacting other amendments somewhat more likely—and conversely, that disuse of the
amending procedures may increase the political or cultural resistance to their use.26
2.2. A comparative perspective on federal amending procedures
There is no agreed-on ideal pace of amendment—just as there is no agreement on
ideal country size, or on ideal duration of constitutions. The widespread acceptance
of judicial review in the United States, and of what some call “judicial supremacy” in
interpreting the Constitution,27 suggests that US constitutional culture accommodates
Cf. Jayne J. Mansbridge, Why We Lost the ERA 18–19 (1986) (discussing how ERA became a polarizing
partisan issue).
22
For debate over the effects of increasing supermajority requirements on cooling down/heating up passionate disagreements, compare Bruce Ackerman, This is Not War, 113 Yale L. J. 1871, 1892 (2004) with
Lawrence H. Tribe & Patrick O. Gudridge, The Anti-Emergency Constitution, 113 Yale L. J. 1801, 1816–
1817 (2004).
23
See Andrew Glass, Congress Overrides a Presidential Veto, March 3, 1845, Politico.com (March 3, 2014),
available at http://www.politico.com/story/2014/03/this-day-in-politics-march-3-1845-104144.html;
Kosar, supra note 14, at 4.
24
See Richard Albert, We the People are Being Misled: The Truth About Constitutional Amendments, Boston
NPR: Cognoscenti (Oct. 30, 2013), at http://cognoscenti.wbur.org/2013/10/30/united-states-constitution-richard-albert (arguing that amendments have historically come in waves, and that contemporary
appeals for amendments are for the most part not intended seriously but are advanced for narrower political ends).
25
On the 27th Amendment, see infra note 78.
26
See Rosalind Dixon, Constitutional Amendment Rules: A Comparative Perspective, in Comparative Constitutional
Law 96, 106 (Tom Ginsburg & Rosalind Dixon eds., 2011) (reporting that in US states, enactment of an
amendment in one year makes enactment of amendments two to four years later much more likely, and
suggesting that political attitudes may account for this effect); see also Vermeule, supra note 3; Albert,
supra note 3.
27
See Keith Whittington, Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court and
Constitutional Leadership in U.S. History (2008).
21
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a considerable amount of constitutional change through adjudication before the
Supreme Court—and might even suggest that the people have consented to this
enhanced judicial function.
Nonetheless, comparative experience suggests there may be advantages to a system
that provides more flexibility and that also promotes a more representative amendment process. It might well be sensible—were reform of the amendment process on
the agenda in the United States—to consider requiring ratification by something less
then three-fourths of the states—such as by only two-thirds or three-fifths of the
states. Other federal states have similar procedures but require ratification by smaller
percentages of their member units—in Canada, by two-thirds of the provinces,28 and
in Australia, by a majority of the states.29 Some federal states require only supermajorities in the national legislature, without resort to ratification in the subnational
units, as in Germany30 or India;31 but given greater commonalities in legal origins
and constitutional culture, the Australian and Canadian examples are probably closer
comparisons.32
But a comparative perspective also suggests a respect in which the formal rules
for the US amending procedure may be too lax. Both Canada and Australia include
See Procedure for Amending Constitution of Canada, § 38(1), Part VI of the Constitution Act, 1982,
being Schedule B to the Canada Act 1982, 1982, c. 11 (U.K.) (requiring approval by at least two thirds of
the provinces). The Canadian constitution now includes several methods of constitutional amendment,
depending on the subject matter; § 38(1) is the most general formula (the “7+50” formula); a second is
“the unanimous consent procedure (s. 41) which applies to certain changes deemed fundamental”; the
third is for “special arrangements . . . [for] amendments in relation to provisions of the constitution that
apply to some but not all provinces;” and the fourth allows amendment by a less demanding procedure
for “unilateral” amendments that “engage purely federal or provincial interests.” Reference re Senate
Reform (Apr. 25, 2014) (Can. Sup. Ct.), https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/13614/
index.do.
29
See Commonwealth of Australia Constitution Act, art. 128 (Mode of Altering the Constitution) (requiring approval of a majority of the states).
30
See German Basic Law, art. 79(2) (requiring passage by a two thirds majority in the Bundestag and by a
two thirds vote in the Bundesrat). Because the interests of the subnational units are more directly represented in the Bundesrat than in the US Senate, see Daniel Halberstam, Of Power and Responsibility: The
Political Morality of Federal Systems, 90 Va. L. Rev. 731, 754–755 (2004); Vicki C. Jackson, Narratives of
Federalism: Of Continuities and Comparative Constitutional Experience, 51 Duke L. J. 223, 276 n.220 (2001),
this requirement is in some respects equivalent to a requirement for agreement by two thirds of the existing subnational unit governments. Germany also forbids amendments of several aspects of its constitution, see art. 79(3); the United States constitution imposes what today is only one subject matter limitation
concerning procedures for amendments (relating to representation in the senate). See also infra note 36.
31
See India Constitution, art. 368 (general rule for amendments requires a majority of the total membership of each house of parliament and of two thirds of those present and voting, while some other amendments also require ratification by a majority of the states). Since coming into force in 1950, the Indian
constitution has been amended at least 98 times. See The Constitution (Amendment) Acts, available at
http://indiacode.nic.in/coiweb/coifiles/amendment.htm. For reasons arguably related to the ease of
amendment, the Indian Supreme Court has developed a robust doctrine allowing it to declare unconstitutional amendments inconsistent with the “basic structure” of the constitution. See Gary Jeffrey
Jacobsohn, An Unconstitutional Constitution A Comparative Perspective, 4 Int’l J. Const. L. 460 (2006).
32
More complete comparative analysis would be needed before finalizing conclusions on this point, or on
the one that follows; these comments are primarily designed to provide a comparative context for evaluating the difficulty of the US amending procedure.
28
The (myth of un)amendability of the US Constitution
583
a requirement lacking from the US Constitution: that, in addition to approval by
a majority or two-thirds of the subnational units, the numbers of persons voting
in favor of the amendment or the number of states approving the amendment
must represent more than 50 percent of those who voted (or the voting population) nationally.33 Such a requirement would increase the democratic legitimacy
of the US amendment procedure, by avoiding the (hypothetical) possibility that an
amendment were approved by the thirty-eight smallest states, against the expressed
views of voters in the twelve largest population states—which hold a majority of
the population.34 Even if such changes in procedure were made, the process would
still have features that would be difficult to meet and could be criticized as departures from simple majority rule.35 But even as it now stands, is amendment of the
US Constitution through article V impossible? History suggests that the answer is
probably no.36
See, e.g., Procedure for Amending Constitution of Canada, § 38(1), Part VI of the Constitution Act,
1982, being Schedule B to the Canada Act 1982, c. 11 (UK) (requiring, inter alia, “resolutions of the
legislative assemblies of at least two-thirds of the provinces that have, in the aggregate, according to
the then latest general census, at least fifty per cent of the population of all the provinces” in support of
proposed amendment); Commonwealth of Australia Constitution Act, art. 128 (Mode of Altering the
Constitution) (requiring both that in “a majority of the States a majority of the electors voting approve
the proposed law,” and that “a majority of all the electors voting also approve the proposed law” to amend
the Constitution).
34
See, e.g., Edwin S. Corwin, The Constitution and What it Means Today 271 (14th ed. Princeton 1978) (indicating that Constitution can be amended by 38 states with less than half the population and amendment
can be defeated by 13 states with less than one-twentieth of the population). According to U.S. Census,
2010, at http://factfinder.census.gov/bkmk/table/1.0/en/DEC/10_SF1/GCTPH1.US01PR/0100000US,
the population of the twelve largest states—California, Texas, New York, Florida, Pennsylvania, Illinois,
Ohio, Michigan, Georgia, North Carolina, New Jersey, and Virginia—was something over 183 million;
the total US population was just over 308 million. An amendment approved by the 38 smaller states
thus could in theory become effective despite their representing less than half the overall population,
although the requirement of prior passage by a two-thirds vote of the House—which is largely, though
not perfectly, apportioned by population—further reduces the odds of this unlikely event.
35
The combination of the two senators per state rule and the supermajority voting requirements may make
the US more of an outlier in terms of malapportionment in the amendment process. The ratio of voting
power in the Senate between Wyoming and California is about 74:1, given California’s population of about
37 million and Wyoming’s of about 500,000. Cf. Basic Law for the Federal Republic of Germany (official
transl.) art. 51(2) (providing that each Land shall have at least 3 votes, and that “Länder with more than
two million inhabitants shall have four, Länder with more than six million inhabitants five, and Länder
with more than seven million inhabitants six votes”); see also Vicki C. Jackson, Transnational Challenges to
Constitutional Law: Convergence, Resistance, Engagement, 35 Fed. L. Rev. 167, 183–184 (2007) (Austl.).
36
In one important particular the US Constitution may fairly be said to be close to impossible to amend:
art. V prohibits amending the guarantee of equal suffrage in the Senate to the states without the consent
of any state adversely affected (in addition to the supermajority approval requirements). It seems most
unlikely that all states adversely affected by such a change would agree to it. So Levinson is correct that
it is close to impossible to amend that provision. It is a question whether it would be constitutionally
legitimate in the US to amend, first, the provision of art. V providing that no state could be deprived of its
equal suffrage; and then, following that, to amend the equal suffrage provision. For analysis of the constitutionality and justiciability of such a sequenced set of changes, see Vicki C. Jackson, Unconstitutional
Constitutional Amendments: A window into Constitutional Theory and Transnational Constitutionalism, in
Demokratie-Perspektiven: Festschrift für Brun-Otto Bryde zum 70. Geburtstag 47, 73–76 (Michael Bäuerle,
Philipp Dann, & Astrid Wallrabenstein eds., 2013).
33
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2.3. Predictions of failure and normative objections may both
contribute to disuse of amendment
What may increase the difficulty of formal amendment in the United States is a seemingly widespread view that constitutional change cannot, as a practical matter, be
sought through amendment, and that as a normative matter amendments should not
be the vehicle for legal change (but rather changes in judicial interpretation should be
sought). Taking account of these aspects of political culture in assessing the effects of
the different amendment procedures is consistent with some recent studies indicating
that the formal rigidity of amending formula has, at best, limited value in predicting
rates of amendment.37
Although I cannot offer conclusive proof in this paper that empirical beliefs in
impossibility and normative attitudes of constitutional veneration contribute to disuse
of the Article V amendment process, the suggestion that they may be causal factors is
consistent with emerging work on the significance of culture as a factor influencing
amendment rates.38 On the first of these—overstatements of the difficulty of using the
amendment process—as already noted, Levinson entitled a chapter in his book, “The
Impermeable Article V,” and refers to Article V as making it “practically impossible” to
enact constitutional change.39 He is by no means alone in doing so. Professor William
Eskridge describes the failure of the Equal Rights Amendment as having apparently
been the “death” of the Article V amendment process.40 Joel Colón-Ríos describes
Article V as “creat[ing] almost insuperable constraints on constitutional change.”41
These statements are widely echoed in the scholarly literature.
Predictions of impossibility often combine with asserted reverence for the
Constitution, related normative resistance to proposing changes in its text, and,
sometimes, fears that any resort to the amendment process will invite populist
movements to amend in undesirable ways; these all may cause hesitation to resort
to the amendment process even when it would seem a logical response. Consider
the reactions from groups that disagreed with the Court’s decision in Citizens United
v. Federal Election Comm’n.42 Public opinion polls after the decision indicated that
See, e.g., Rasch & Congleton, supra note 12, at 333–335 (questioning relationship between formal amendment rate and constitutional stability); Carlos Closa, Constitutional Rigidity and Procedures for Ratifying
Constitutional Reforms in EU Member States, in Changing Federal Constitutions: Lessons from International
Comparisons 281, 303 (Arthur Benz & Felix Knüpling eds., 2012) (noting three recent studies casting
doubt on how strongly rigid amending procedure affect the rate of amendments and reporting, based
on analysis of the 26 EU countries with written constitutions, no statistically significant relationship
between rigidity of amending procedure and rate of amendment). Although there was a non-statistically
significant relationship in the expected direction, Closa concludes that “rigid amendment procedures are
not a full predictor of amendability . . . .” Id. at 303. But cf. Dixon, supra note 26, at 106 (reporting study
of US state constitutions showing that both high supermajority voting requirements and large size of
legislature lowered rate of amendment).
38
See Tom Ginsburg and James Melton, Does the constitutional amendment rule matter at all? Amendment cultures and the challenges of measuring amendment difficult, 13(3) Int’l J. Const. L. 584 (2015).
39
Levinson, supra note 1, at 159–160.
40
William Eskridge, America’s Statutory “Constitution”, 41 U. C. Davis L. Rev. 1, 31 (2007).
41
Colón-Ríos, supra note 5, at 4.
42
Citizens United v. Federal Election Comm’n, 558 U.S. 310 (2010).
37
The (myth of un)amendability of the US Constitution
585
public sentiment, among both Republican and Democratic voters, was running
strongly against the decision.43 One might have thought this was an opportune
moment to go the people, through the amendment process, to obtain constitutional authorization for regulation of campaign expenditures and contributions.
Yet some combination of reasons—which may include concerns for overriding the
Supreme Court through amendment, reluctance to amend in any way the First
Amendment, as well as a belief in the futility of the amendment process, and support for the decision by influential minorities—prevented any groundswell of support for a responsive amendment in the first years after the decision came down.
Yet an immediate response through constitutional amendment (as occurred, for
example, after Oregon v. Mitchell) had some compelling reasons behind it, including the benefits of acting before spending and fundraising patterns adjusted to the
new regime under Citizens United and expectations by politicians and corporations
became entrenched.44
A leading public interest group that opposed the Citizens United decision was the
Brennan Center for Justice at New York University School of Law. The Brennan Center
devoted considerable effort to developing strategies for responding to the decision,
including hosting conferences and preparation of research/policy papers. The nature
of the organization’s early response is illustrated by a paper, Renewing Democracy
After Citizens United, which proposed three strategies toward renewing democracy:
enacting legislation for small donor public financing; increasing voter registration;
and developing new jurisprudence, that is, new doctrinal arguments to persuade
future courts of a different view.45 In 2011, the Brennan Center held a conference,
Accountability After Citizens United, also on responses to Citizens United, that focused
on statutory approaches through securities and corporate law; activating administrative agencies, like the Federal Election Commission (FEC), Federal Communications
See Polling Shows Widespread Opposition to Citizens United v. FEC Decision, American Constitution Society Blog (Feb.
17, 2010), http://www.acslaw.org/acsblog/polling-shows-widespread-opposition-to-citizens-united-v-fecdecision.
44
On the impact of Citizens United on campaign financing, see Chris Cillizza, How Citizens United Changed
Politics in 7 Charts, Washington Post, Jan. 22, 2014, www.washingtonpost.com/blogs/the-fix/
wp/2014/01/21/how-citizens-united-changed-politics-in-6-charts/ (finding huge surges in spending
on 2012 Presidential and 2010 midterm elections; outside group spending as of 1/21/14 was “already
three times as much as it was at this time in the 2010 election” and 25 times more than at the same
point in the 2006 election). See also Richard Hasen, Three Wrong Progressive Approaches (And One Right
One) to Campaign Finance Reform, 8 Harv. L. & Pol’y Rev. 21 (2014) (“Since Citizens United, outside spending in federal elections has increased markedly—as much as 245% in presidential elections, 662% in
House elections, and 1338% in Senate elections—raising dangers of corruption and increasing political inequality.”) (internal footnotes omitted); id. at 26 (noting Citizens United’s “psychological effect in
freeing individuals to give obscenely large sums to these outside groups”). Hasen argues that a narrow
amendment authorizing Congress to regulate would be ineffective, in part because of changes in cultural
attitudes resulting from Citizens United. Id. at 27–28.
45
Susan M. Liss & Michael Waldman, Renewing Democracy After Citizens United (2010), available at https://
www.brennancenter.org/sites/default/files/legacy/publications/RenewingDemocracy.pdf ?nocdn=1.
I myself participated in a small workshop at the Brennan Center soon after the decision, discussing various responses.
43
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Commission (FCC), and Internal Revenue Service (IRS); and, again, developing new
jurisprudence around the issue.46 The Brennan Center’s failure in those responses to
devote any attention to the possibility of an amendment as a form of “democratic
renewal,” or “accountability,” speaks volumes about its belief in the possibility, and/or
desirability, of amendment.
Similarly, an issue analysis prepared for another public interest group, the American
Constitution Society (ACS), soon after the Citizens United decision, addressed several
issues.47 They included the need to have better factual records for “strict scrutiny”
review to support the claimed need for regulation; increasing disclosure requirements; addressing disclosures and expenditure issues through corporate law and
requirements of shareholder approval; moving towards public funding of campaigns;
modernizing voter registration; and appointing as Supreme Court justices those with
a “voter-centric” view of the First Amendment.48 Despite its thoughtfulness and seemingly comprehensive overview of possible responses (including the constitutional politics of appointments to the Court), this memo for ACS did not mention the possibility
of constitutional amendment.49
To be sure, some critics of Citizens United have tried, and with some success, to promote a constitutional amendment in response. At least fourteen proposals were introduced in Congress within two years of the decision; these range from amendments
sweeping broadly to say that corporations do not hold rights under the Constitution,
to those authorizing legislatures to regulate corporate, or all, campaign contributions
and expenditures, to those excluding campaign expenditures from First Amendment
protections, to those establishing a substantive rule, for example, banning corporate
contributions or expenditures.50 An organization called “Move to Amend” seeks petition signatures for a proposed amendment to “our Constitution to firmly establish that
money is not speech, and that human beings, not corporations, are persons entitled to
constitutional rights”; they reportedly had about 300,000 signatures in mid-2013.51
Another organization, “Free Speech for People,” supports amendments to “(1) enable
Congress and the states to limit campaign spending and (2) to make it clear that corporations do not have constitutional rights;” in 2013 it claimed to be “one-third” of the
See Accountability After Citizens United, Conference at Brennan Center for Justice (Apr. 29, 2011), http://
www.brennancenter.org/event/accountability-after-citizens-united (describing the event in April 2011).
47
See Monica Youn, Citizens United: The Aftermath, an Issue Brief for the American Cons­titutional Society (June
8, 2010), https://www.brennancenter.org/analysis/citizens-united-aftermath-issue-brief-americanconstitutional-society.
48
Id.
49
Since 2010, the American Constitution Society (ACS) has had blogposts in support of amendments. See,
e.g., Overturning Citizens United: Jeff Clements on the Amendment Option, American Constitution Society Blog
(Jan. 21, 2011), https://www.acslaw.org/acsblog/node/18082.
50
See League of Women Voters, Review of Constitutional Amendments Proposed in Response to Citizens’
United (as of Dec. 3, 2012), http://lwv.org/content/review-constitutional-amendments-proposedresponse-citizens-united.
51
See Maria M. Agosto, Only People are People (July 11, 2013), https://www.facebook.com/
OnlyPeopleArePeople/posts/10200314150441477 (reporting that Move to Amend is close to having
300,000 signatures and providing a link to Move to Amend website).
46
The (myth of un)amendability of the US Constitution
587
way to succeeding with a constitutional amendment.52 In 2014, the “Democracy for
All” amendment, Senate Joint Resolution 19, 113th Congress, did not receive the necessary two-thirds vote, notwithstanding majority support in the Senate.53 Some wellestablished public interest groups, including People for the American Way,54 and Public
Citizen,55 have supported amendment as an approach, as have some legal scholars.56
But other influential non-governmental organizations (NGOs) and political actors
who disagreed with the decision in Citizens United nonetheless ruled out seeking an
amendment, either because they believed it is so unlikely to succeed and/or because
they believe other approaches have normative advantages. It is possible that those
groups that did not include amendment as a possible response to Citizens United did so
because they believed a constitutional amendment is a bad idea for reasons other than
its unlikelihood of enactment.57 They might believe that an amendment would be too
hard to craft to achieve its goals in the hands of an uncertain Supreme Court; or that
entrenching provisions relating to the subject is a bad idea for democratic politics; or
even that “progressives” who oppose Citizens United should not seek amendment lest
it encourage “conservatives” to seek amendments that progressives disagree with.58
See Lindsay Van Dyke, Support for Amending the Constitution to Overturn Citizens United is One-Third of
the Way There!, Free Speech for People (Sept. 24, 2013), http://www.freespeechforpeople.com/node/601
(reporting that they had 40% of the numbers needed in the Senate, and only 33% of the numbers needed
in the House, to reach the two-thirds required).
53
This proposal would authorize Congress and state legislatures to regulate campaign contributions and
expenditures in elections. It was favorably reported by the Senate Judiciary Committee in 2014, S. Rep. No.
113–223, 113th Cong., 2d sess.; Matea Gold, Campaign Finance Debate a Partisan Flashpoint as it Moves to
Senate Floor, Washington Post, Sept. 8, 2014 (also noting that all 48 sponsors of the Senate measure were
Democrats), but received an affirmative vote of 54-42 that fell short of the required two-thirds majority.
See Ramsey Cox, Senate GOP Blocks Constitutional Amendment on Campaign Spending, The Hill Blog (Sept.
11, 2014, 2:19PM), http://thehill.com/blogs/floor-action/senate/217449-senate-republicans-blockconstitutional-amendment-on-campaign. The Democracy For All Amendment was re-introduced in the
114th Congress (S. J. Res. 5 and H. J Res. 22).
54
See People for the American Way, Letter in support of the Democracy For All amendment,
H.J. Res. 22 and S.J. Res. 5 (May 4, 2015), available at http://www.pfaw.org/sites/default/
files/2015-05-04-D4A-PFAW.pdf; People for the American Way, Edit Memo: Senator Udall’s
Constitutional Amendment Proposal Would Restore the First Amendment and Strengthen
our Democracy (June 2, 2014), available at http://www.pfaw.org/press-releases/2014/06/
edit-memo-senator-udall-s-constitutional-amendment-proposal-would-restore-fir.
55
See Public Citizen: Democracy is for People, http://www.democracyisforpeople.org.
56
See Lawrence Lessig, Republic, Lost 290–304 (2011) (suggesting a convention to propose amendments
concerning campaign finance and corruption; see also Levinson, supra note 1, at 11 (calling for a constitutional convention to propose an entirely new constitutional text)).
57
I am not here referring to organizations like the American Civil Liberties Union (ACLU), which agree with
Citizens United.
58
Cf., e.g., Hasen, supra note 44, at 22–28, 37 (arguing against amendment as compared to adjudicatory
approach to “progressive campaign finance reform”); Constitution Project, “Great and Extraordinary
Occasions”: Developing Guidelines for Constitutional Change 2 (1999), available at http://www.constitutionproject.org/wp-content/uploads/2012/09/32.pdf (noting “troubling” break from “self-restraint” in
amendments that have moved forward in Congress). The Constitution Project was bipartisan; its first
leaders were Republican Mickey Edwards (R-Okla.) and Democratic Abner Mikva (D-Ill.). The spate of
constitutional amendments receiving serious attention that prompted its “Guidelines” were mostly (with
the notable exception of campaign finance), proposals advanced by the Republican Party. See id. (noting
52
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I•CON 13 (2015), 575–605
But a significant part of the opposition to amendment—among those who would
like to overturn the effects of Citizens United—has to do with a belief that it would
be impossible. For example, Mark Schmitt, Senior Fellow of the Roosevelt Institute,
advanced a series of arguments, which appear mostly bottomed on the unlikelihood of an amendment passing.59 In one debate with proponents of amendment, he
stated that proceeding with an amendment would imply to those working on other
approaches that “we can’t do anything until we have a constitutional amendment,”
and argued that “under the current circumstances, ‘We can’t do anything until we
have a constitutional amendment’ is exactly the same as saying, ‘We can’t do anything.’”60 Later remarks made clear he was not substantively opposed to amendment
insofar as it related to campaign finances, and that he agreed that Citizens United was
wrongly decided,61 though he also raised questions about the capacity to draft an adequate amendment.62 Thus evidence suggests that opposition to amendment is based in
part on concerns that it would be impossible and in part on normative worries about
amendment as opposed to other mechanisms of change.
The resistance to amendment as a response to judicial interpretation of the
Constitution is also illustrated in the earlier controversy surrounding the Court’s
that “six proposed constitutional amendments—concerning a balanced budget, term limits, flag desecration, campaign finance, religious freedom, and procedures for imposing new taxes—have reached the
floor of the Senate, the House, or both bodies” and that “the balanced budget amendment and the flag
desecration amendment . . . passed the House, and a version of the balanced budget amendment twice
failed to win Senate passage by a single vote”). For Republican Party Platform support of balanced budget, term limits, and flag burning amendments, see The 1996 Republican Party Platform, CNN (1996),
http://www.cnn.com/ALLPOLITICS/1996/conventions/san.diego/facts/gop.platform/platform.all.
shtml. Republicans also sought an amendment restricting new taxes, see Adam Clymer,
House to Vote on a Constitutional Amendment on Taxes, N.Y. Times, Apr. 14, 1996, and religious freedom, see
Katherine Q. Seelye, Republicans in Congress Renew Push for Vote on School Prayer Amendment, N.Y. Times,
July 16, 1996.
59
Mark Schmitt, The Wrong Way to Fix Citizens United, New Republic, Jan. 20, 2012, available at http://
www.newrepublic.com/article/politics/99833/constitutional-amendment-citizens-united. Schmitt also
argued that seeking an amendment would “undermine progress on other solutions, including public
financing, improvements in corporate governance to give shareholders more say in political contributions, disclosure improvements, and better enforcement of existing laws by both the Federal Election
Commission and the Internal Revenue Service.” See also Overturning Citizens United: Is a Constitutional
Amendment the Best Path to Limit Dark Money?, Democracy Now! (Mar. 13, 2013), http://www.democracynow.org/2013/3/13/overturning_citizens_united_is_a_constitutional (Amy Goodman quoting
Schmitt); Richard Hasen, Dependence Corruption, 12 Election L. J. 305 (2013) (expressing pessimism
about obtaining a constitutional amendment and arguing there is more prospect for having a liberal
justice appointed who would adopt a different interpretation than Citizens United).
60
See Overturning Citizens United, supra note 59.
61
Id. Schmitt, supra note 59, did express substantive reservations about efforts more generally to withdraw
speech protections from corporations. On the possible benefits of a more narrowly drafted amendment that
would not generally threaten the status of corporations as rights-holders, see Vicki C. Jackson, Democracy
And Judicial Review, Will And Reason, Amendment And Interpretation: A Review Of Barry Friedman’s The Will of
the People, 13 U. Pa. J. Const. L. 413, 449–452 (2010). For other reservations about amendments to deprive
corporations of rights by those critical of Citizens United, see A Great and Extraordinary Occasion: Amending the
Constitution after Citizens United, Alliance for Justice (May 23, 2012), http://www.afj.org/blog/a-great-andextraordinary-occasion-amending-the-constitution-after-citizens-united (quoting Professor Greenfeld).
62
Schmitt, supra note 59.
The (myth of un)amendability of the US Constitution
589
flag-burning cases. In 1989, the Supreme Court held unconstitutional, under the First
Amendment, a Texas state law that made it a criminal offense to “desecrate a venerated object,” specifically defined to include a “state or national flag,” as by burning an
American flag at a public political demonstration.63 The decision was controversial,
and unpopular, generating calls for response including a constitutional amendment
supported by President Bush and many Republicans.64 Leading Democrats opposed an
amendment, but supported a federal law prohibiting flag burning, as did a number of
leading constitutional scholars, in part to avoid “tinkering” with the Constitution.65
Both Professors Tribe and Dellinger testified that the Court would probably uphold
a statute prohibiting flag destruction if written in more neutral terms (focused on
“destruction” rather than “desecration”), while Robert Bork, a leading constitutional
scholar and unsuccessful Republican nominee for the Supreme Court, testified that
the only way to make lawful a statute directed at flag burning was by constitutional
amendment.66 Congress enacted a federal statute banning destruction of the flag,
whether out of then-genuine belief that such a statute was a good policy that would be
upheld by the Supreme Court, or out of a hypocritical desire to display patriotism in a
likely unconstitutional act;67 the federal statute was promptly found unconstitutional
Texas v. Johnson, 491 U.S. 397, 400 & n.1 (1989) (describing statute, which prohibited desecration of
listed objects in a way that desecrator knows will “seriously offend” others).
64
See Foley Chides Bush Over Flag Amendment, N.Y. Times, July 25, 1989, 1989 WLNR 1628291 (noting that
President Bush called for a constitutional amendment six days after the decision). House Speaker Thomas
Foley accused Bush of favoring more amendments than any president in modern history, and deplored
“the frequency and ease with which he proposes putting hands on, as George Will says, ‘Mr Madison’s
document,’” expressing constitutional veneration. Id.
65
Robert Julius Goldstein, The Great 1989–90 Flag Flap: An Historical, Political and Legal Analysis, 45 U. Miami
L. Rev. 19, 80 (1990) (quoting language widely used in congressional hearings on proposed amendments
or statutes in response to Texas v. Johnson, 491 U.S. 397 (1989)). For a sense of the political strategy of
the Democrats, and some Republicans, to defeat a constitutional amendment, see, e.g., Associated Press,
Demo Cure: House OKs Flag-Burning Statute, New Orleans Times Picayune, Sept. 13, 1989, 1989 WLNR
538609 (noting Republican accusations that Democrats were pushing for a statute hypocritically, to protect flag-burning, quoting Rep. Chuck Douglas (R-N.H.) as saying “The game is obvious . . . . This is the
flag burner protection act of 1989”); A Move to Foil Amendment Drive House Panel Votes to Outlaw Flag
Burning, L.A. Times, July 28, 1989, 1989 WLNR 1618536; Editorial: The Senate’s Civic Lesson for Bush,
Chicago Tribune, Oct. 22, 1989, 1989 WLNR 2476721 (noting Democrats’ success in thwarting President
Bush’s efforts to enact a constitutional amendment and describing Democrats and some Republicans
as having “stalled until Congress could pass a bill that outlaws flag-burning and provides them with
political cover,” even though the “statute isn’t a good idea either”). There was some support for the
Court’s decision, opposing any effort to undo it by statute or amendment, including from the American
Bar Association. See Editorial: A Wise, Lawyerly View on Flag Burning, Atlanta J. & Const., Aug. 9, 1989,
1989 WLNR 1501818; ABA Opposes Any Amendment to Ban Flag-Burning, AP News Archive, Aug. 10,
1989, http://www.apnewsarchive.com/1989/ABA-Opposes-Any-Amendment-to-Ban-Flag-Burning/
id-b5edde80910ebc5e24cb87bbe5ebe207.
66
See, e.g., Measures to Protect the Physical Integrity of the American Flag: Hearings before the Senate
Comm. on the Judiciary, S. Hrg. 101–355, 101st Cong. 1st sess. 100 (Robert Bork), 364–368 (Forrest
McDonald), 150–153 (Laurence Tribe), 541–545 (Walter Dellinger) (1989) [hereafter Senate Hearings].
67
Goldstein, supra note 65, at 85, described the Flag Desecration Act of 1989 as “one of the most hypocritical, illogical, poorly drafted, and blatantly unconstitutional laws which Congress has ever passed . . . .”
Laurence Tribe, who had argued the year before that flag burning bans were unconstitutional, Laurence
H. Tribe, American Constitutional Law 801–802 (2d ed. 1988), explained in his testimony how he had had
63
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I•CON 13 (2015), 575–605
by the same five-justice majority that struck down the earlier statute.68 By the time of
the second decision, however, passions had cooled,69 and although efforts to enact an
amendment continued at least through 2006, no amendment was proposed by the
requisite votes of both houses of Congress.70
In both of these instances, some apparent opponents of a Supreme Court decision
invoked normative arguments in favor of responses that did not involve a constitutional amendment. It is to such normative arguments that I now turn more directly.
3. Should there be a strong presumption against seeking
amendment in response to Supreme Court rulings of
unconstitutionality?
Reluctance to resort to amendment for normative reasons may contribute to the relative absence of successful amendment movements, in ways that reinforce the sense of
futility in trying; the perceived difficulty and the normative arguments against constitutional amendment (even when there is strong disagreement with the Court) may
reinforce each other in an overall cultural message: whatever you do, don’t amend
the Constitution. This section explores the normative case for a presumption against
amendment as a response to decisions one disagrees with, as it has been developed by
its leading proponents in the United States, and then considers affirmative arguments
in favor of amendment as a response that may at times be preferable.
a change of heart after reflecting on the uproar over Texas v. Johnson, 491 U.S. 397 (1989), and his own
father’s devotion to an American flag when he was held as a prisoner of war by the Japanese. See Hearings
Before the Subcomm. on Civil and Constitutional Rights of the House Comm. on the Judiciary, 101st
Cong., 1st Sess. Serial No. 24 100–102 (1989) (Lawrence Tribe’s testimony). For comment on Tribe’s
shift in views, see Stuart Taylor, Jr., Taking Issue: Smarm-Splattered Banner, Legal Times, July 17, 1989,
at 13 (arguing that support by Democrats for a flag burning statute resulted from “raw political panic”
and that Tribe’s argument that prohibiting flag destruction could be separated from the suppression of
the views of the flag burner was contradicted by his treatise, which had reasoned that “protection of the
flag as symbol could not be separated from suppression of the desecrator’s views, because the symbol is
degraded ‘only when such conflict is perceived by others . . . [and] interpreted in a certain way’”). But
Justice Blackmun’s views, acknowledged in a footnote reference, Texas v. Johnson, 491 U.S. at 411 n.6, to
his dissent in Smith v. Goguen, 415 U.S. 566, 590–591 (1974) (Blackmun, J., dissenting), arguably left
open the possibility that a different prohibition on flag burning might be sustained. Whether support for
the constitutionality of a flag burning statute in 1989 was hypocritical, subsequent events suggest that
the passions of the time, including a reluctance to see the Constitution itself modified by amendment,
may have had an influence on views of the likely constitutionality of a federal flag burning act.
68
United States v. Eichman, 496 U.S. 310 (1990).
69
See Charles Tiefer, The Flag-Burning Controversy of 1989–1990: Congress’ Valid Role in Constitutional
Dialogue, 29 Harv. J. on Legis. 357, 377 (1992).
70
See Goldstein, supra note 65, at 99–100 (reporting that after Eichman, “some of the statute’s less enthusiastic backers succeeded in delaying serious consideration of a constitutional amendment until passions
cooled. The public simply lost much of its interest . . . .”); Congress Descends Into a Political Food Fight, 27(9)
Judicial/Legis. Watch Report 4 (2006), http://www.aei.org/wp-content/uploads/2011/10/20070808_
JLWR_Sept06.pdf (noting Senate’s failure, by one vote, to approve proposed constitutional amendment
on flag burning).
The (myth of un)amendability of the US Constitution
591
3.1. Arguments supporting a strong presumption against amendment
In the 1990s, as numerous proposals for constitutional amendments received consideration in Congress, a public interest group, the Constitution Project, formed
and issued a report, “Great and Extraordinary Occasions: Developing Guidelines for
Constitutional Change,”71 which cautioned against resort to amendment in response
to judicial rulings. Adrian Vermeule has referred critically to what he calls a “generic
. . . presumption” in the United States that constitutional amendments are a mistake.72 One cluster of normative arguments include opposition to “clutter[ing]” or
“trivializing” the Constitution,73 or undermining its “unifying force” and “symbolic
significance” by causing it to be viewed as a special interest vehicle.74 Efforts to amend
“often put on the table fundamental issues about our character as a nation, thereby
bringing to the fore the most divisive questions on the political agenda,” which could
harm national cohesion, because “no country can . . . [argue] continuously” about
fundamentals.75 (Similar arguments have been advanced recently in the UK for not
engaging in a process to create a written constitution.76) Indeed, some opponents of
amendment in the United States might be understood to seek an unwritten constitutional convention against formal textual amendment, to promote that “veneration” of
the Constitution seen as an important basis for rights protection and the rule of law.77
While very frequent amendment may detract from the rule of law and diminish
attachment to the constitution, stability and the rule of law are surely not threatened by anything approaching the very low amendment rate in the United States; the
last time the Constitution was formally amended was more than twenty years ago,
in 1992, and then by an amendment originally proposed in 1791 in a bizarre and
sui generis ratification process.78 The difficult hurdles for amendment are themselves
See Constitution Project, supra note 58. The Constitution Project was organized on a bipartisan basis and
has raised concerns about amendments favored by both Republicans and Democrats; in the time it was
organized, however, a wider array of proposed amendments had the support of the Republican Party; the
partisan division may have affected the character of the debate. See supra notes 58 and 64–67.
72
Adrian Vermeule, Constitutional Amendments and the Constitutional Common Law, in The Least Examined
Branch: The Role of Legislatures in the Constitutional State 229–230 (Richard Bauman & Tsvi Kahana eds.,
2006).
73
Vermeuele, supra note 72, at 230.
74
Constitution Project, supra note 58, at 5.
75
Id.
76
See Nicholas W. Barber, Against a Written Constitution, Public Law 11 (2008), available at http://ssrn.com/
abstract=2255320.
77
See The Federalist Papers: No. 49 (James Madison or Alexander Hamilton) (noting importance of “reverence” for the laws and need to avoid stirring the “passions” too frequently); Nicholas O. Stephanopoulos
& Mila Versteeg, Constitutional Love (unpublished manuscript, 2015). On whether Article V should be
regarded as informally amended through “desuetude,” see Richard Albert, Constitutional Disuse or
Desuetude: The Case of Article V, 94 B.U. L. Rev. 1029 (2014).
78
Initially proposed by the First Congress as one of 12 amendments for the states to consider, the amendment prohibiting congressional pay increases from taking effect without an intervening election was
long deemed rejected; indeed, it was cited as an example of an amendment so old that a court could
declare efforts to revive it unreasonable. Dillon v. Gloss, 256 U.S. 368, 374–375 (1921). However, in the
late 1970s, a norm entrepreneur began to encourage ratifications, an effort bolstered by public unhappiness with congressional salary increases; more ratifications occurred; the Archivist of the United States
71
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likely to stand as obstacles to the kind of frequent amendment, or “cluttering” that
might pose real threats to either stability or the rule of law.
Apart from arguments already noted, Kathleen Sullivan has argued that a presumption against amendment is warranted by interests in constitutional coherence, in constitutional generality, and in preserving the role of the Supreme Court.79
Arguments from constitutional coherence may be predicated on a greater presumption of existing coherence than is warranted.80 And the related worry over drafting
challenges, including the unintended consequences of a constitutional text later
interpreted by courts,81 arguably support care in drafting more than to hesitation to
amend.82
The interest in generality is important for some aspects of constitutions; indeed, the
harder a constitution is to amend, the more significant it is that it contain sufficiently
general principles; on the other hand, some parts of a constitution need to be specific (e.g., in identifying when elections are held). This concern does relate to what are
appropriate subjects for amendments; the caution against entrenching specific policies, of a kind on which democratic polities might legitimately change their minds, in
79
80
81
82
declared the amendment ratified; both houses of Congress voted to accept the determination; and no
litigation challenge was adjudicated. See Richard B. Bernstein, The Sleeper Wakes: The History and Legacy
of the Twenty-Seventh Amendment, 61 Fordham L. Rev. 497 (1992); Michael Stokes Paulsen, A General
Theory of Article V: The Constitutional Lessons of the Twenty-Seventh Amendment, 103 Yale L. J. 677 (1993);
Stewart Dalzell & Eric J. Best, Is the Twenty-Seventh Amendment 200 Years too Late?, 62 Geo. Wash. L. Rev.
501 (1994); see also Boehner v. Anderson, 809 F. Supp. 138 (D.D.C. 1992) (indicating that a challenge to
the constitutionality of the 27th Amendment raised only by an amicus curiae would not be addressed).
Casebooks and official documents generally treat the amendment as an effective part of the Constitution.
Cf. Sanford Levinson, Authorizing Constitutional Text: The Purported Twenty-Seventh Amendment, 11 Const.
Comm. 101, 109–110 (1994) (noting scholarly disagreement whether the Amendment is part of the
Constitution and reporting that one casebook included it but with an asterisk).
See Sullivan, supra note 2; see also Kathleen M. Sullivan, Constitutional Constancy: Why Congress Should
Cure Itself of Amendment Fever, 17 Cardozo L. Rev. 691 (1996).
On the role of “bricolage” in constitution-drafting, and its implications against presumptions of coherences within a large text, see Mark Tushnet, The Possibilities of Comparative Constitutional Law, 108 Yale
L. J. 1225, 1285–1301 (1999).
See Constitution Project, supra note 58, at 3–4, 17.
To be sure, it may be easier to avoid problems of incoherence through adjudication, which offers a more
incremental method of constitutional evolution in which there is time for feedback and later adjustments. Yet formal textual amendment has other virtues; and interpretive evolution of new constitutional
provisions to enable them—as appropriate—to fit with others will also occur.
It is also true that amendments are difficult to draft. In the wake of Citizens United there were many proposals and substantive disagreements among opponents of the decision whether the problem to be solved
was the broad phenomenon of corporations being treated as persons with constitutional rights, or the
narrower arena of the authority of legislative bodies to impose regulations on campaign expenditures
and contributions. See supra note 61 (noting argument for a narrow amendment). For other reservations about amendments focused on depriving corporations of rights, even as they are critical of Citizens
United, see A Great and Extraordinary Occasion, supra note 61 (quoting Professor Greenfeld). But drafting
legislation poses challenges that are similar—and in the face of Supreme Court precedent that must be
accommodated, sometimes more difficult. Because amendments, if enacted, are harder to change, more
care is called for—but that is surely not a sufficient reason to avoid a constitutionally available route to
change.
The (myth of un)amendability of the US Constitution
593
a very difficult to amend constitution, does seem like a relevant factor.83 But a “general
principle” might include giving an authority to a legislature to act in an area denied
them under judicial decisions, as in the proposed Child Labor Amendment and, in part,
the 21st Amendment repealing Prohibition (which gave authority to state legislatures
to regulate intoxicating liquor). A leading proposal to respond to Citizens United takes
the form of authorizing legislative regulation of campaign expenditures.84 Sullivan’s
concern for not “impos[ing] a controversial social policy” or not entrenching “shortterm policy goals”85 (which she illustrates by reference to Prohibition), can be quite
difficult to apply ex ante: surely, the 13th Amendment abolishing slavery was, even
if controversial, normatively appropriate; and if Prohibition (of alcoholic beverages)
was a “short-term” goal, perhaps it could only be known as such over the passage of
time (which resulted in its repeal).86
Finally, on the role of the Supreme Court: too frequent use of amendment to overrule Supreme Court decisions with which a majority disagrees would have the potential to diminish the role of the Court. But too frequent enactment of statutes that are
in effect efforts to overrule might have the same effect, as the Court may have believed
was the case when Congress, in response to the Court’s decision in Employment Division
v. Smith,87 enacted the Religious Freedom Restoration Act;88 the Court struck down
major portions of this Act, implicitly rebuking Congress for giving insufficient respect
to Smith.89 Acceptance of the Court’s results in adjudicated decisions is important to
the rule of law and to legal stability; having the Court perform a “settlement” function
on constitutional contests has real value (especially when its decisions protect rights
of vulnerable and relatively powerless minorities). But the requirements for enacting amendments are themselves so rigorous, that those procedures—and the history
of their use—suggests that the risks of too frequent amendment are low.90 Whether
To some extent, this concern can be addressed by amendments that authorize but do not require regulation. Direct imposition of a substantive rule, as in prohibiting slavery, will sometimes be most appropriate;
on other less morally freighted issues, authorization of regulation may be a more useful technique for
preserving appropriate flexibility into the future. For discussion of other criteria for defining appropriate
occasions for amendment, see infra note 112.
84
See, e.g., S.J. Res. 19, 113th Congress.
85
See Kathleen M. Sullivan, What’s Wrong with Constitutional Amendments, in Great and Extraordinary
Occasions: developing Guidelines for Constitutional Change 40, 42 (Constitution Project, 1999).
86
Cf. Vicki C. Jackson & Mark Tushnet, Comparative Constitutional Law 351 (3d ed. 2014). Controversy
alone cannot condemn an amendment; consider the controversy around slavery that preceded the 13th
Amendment, or about women’s equality and the 19th Amendment. Moreover, it is not clear why amendments towards “controversial” or “short-term” goals would be more likely than others to raise coherence
problems. But cf. Sullivan, supra note 85, at 42.
87
Employment Division v. Smith, 494 U.S. 872 (1990).
88
Religious Freedom Restoration Act, Pub. L. No. 103–141, 107 Stat. 1488 (Nov. 16, 1993).
89
See City of Boerne v. Flores, 521 U.S. 507, 535–536 (1997). Statutes that are a dialogical response to a
court ruling that legitimately leaves open the possibility of a more narrowly drawn statute being constitutional may on occasion be hard to distinguish from statutes that are better viewed as efforts to overrule
the Court. See supra notes 64–70 (discussing debate over the Flag Burning statute enacted after Texas
v. Johnson).
90
See Vermeule, supra note 72, at 257–258 (arguing that if procedural requirements for approving an
amendment are sufficiently rigorous, a general normative presumption against amendment may constitute an added and harmful “drag” on the system).
83
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particular decisions should be overturned is a question not only of the Court’s settlement role, but also of the merits of the decision.
A related concern about frequent amendment threatening minority rights was
raised by Walter Dellinger’s testimony on the proposed flag-destruction statute after
Johnson v. Texas.91 For Dellinger, a statutory response was preferable to an amendment, because the latter might whet “the appetites of many for quick ways to leap over
constitutional barriers” protecting the rights of “unpopular group[s].”92 Professor
Michelman dubbed these and other concerns the fear of “addictive” amendment.93
Michelman argued that a flag burning statute, if upheld, might have broader adverse
effects on the Constitution’s protection of freedom of speech than would a constitutional amendment: on conventional understandings, amendments can draw arbitrary lines to limit change to particular subject areas, in ways that the principled
consistency requirements of judicial review would not permit.94
Even under criteria discussed by some supporters of a presumption against amendment, the subject matter of a proposed amendment to authorize state and federal
legislatures to engage in reasonable regulation of campaign expenditures and contributions in response to Citizens United is arguably justified. Sullivan, for example, wrote
that amendment is appropriate “when changes consistent with [the Constitution’s]
broad purposes are unlikely to be implemented by ordinary legislative means.”95
Sullivan’s example is franchise-expanding amendments which, she says, were appropriate as constitutional changes because existing electors would be hesitant to “dilute”
the value of their own suffrage by making change at the state level without being sure
other states would do the same. Whatever the merits of this argument, an a fortiori
argument might well apply when an amendment is—short of persuading the Court
to overrule itself—the only way to authorize regulation that so many believe is important to preserving the value of individual votes in elections.96
Nor has the Constitution Project, which published guidelines concerning when
amendment is or is not appropriate, argued that the Constitution should never be
amended. Although its report opposes any constitutional amendment to overcome
the effects of Buckley v. Valeo,97 it draws a distinction between amendments that take
a definitive position on a contested issue of policy as opposed to those that authorize
governments to regulate.98 A provision with such authorization for legislative action
could overrule Citizens United without raising concerns about unduly entrenching
particular substantive policies.
See Senate Hearings, supra note 66, at 553, 556 (testimony of Walter Dellinger).
Id.
93
Frank Michelman, Saving Old Glory: On Constitutional Iconography, 42 Stan. L. Rev. 1337,1356 (1990).
94
Id. at 1340–1354, 1359.
95
Sullivan, supra note 2.
96
Approaches through state corporate law might run some of the risks Sullivan identified for state-by-state
franchise expansion, that is, a concern about putting businesses incorporated in one state at a disadvantage vis-à-vis those incorporated elsewhere.
97
Buckley v. Valeo, 424 U.S. 1 (1976) (holding that campaign expenditure limits on candidates are
unconstitutional).
98
Constitution Project, supra note 58, at 12–13.
91
92
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595
3.2. Arguments in favor of amendments as response to judicial
decisions
I move now to arguments in favor of considering amendment as a response to judicial decisions that seem importantly wrong. While there are reasons to be concerned
about too frequent amendment, so, too, are there reasons to be concerned about too
infrequent use of the Article V amending power. There are some significant benefits
of amendment, as compared to reliance on adjudication (or ordinary legislation), to
respond to a perceived need for legal change.
First, constitutional amendment focuses more political attention on the object of
the amendment once it gains momentum. In its early phases, an amending process
focuses proponents’ attention on identifying the constitutional principle at stake. As
it moves forward, and positions are articulated, areas of consensus on possible legislative solutions may emerge; greater identification of sources of opposition will also
emerge; and—at least in theory—a better deliberative process can result.
This process is likely to be more costly than the process of adjudication, or of ordinary
legislation. But precisely because of its more diffuse and iterative processes, constitutional
change by virtue of the amendment process of Article V may be more likely to be treated
as final by those opposed and more likely to endure than contested judicial decisions.99
(For these reasons, some scholars have suggested that even though the initial decision
costs of adjudication are lower than of amendment, over the longer run, amendment
may end up being a more efficient way to assure enduring constitutional change.100) To
be sure, the more incremental processes of constitutional adjudication—what Heather
Gerken refers to as “informal constitutional amendments”—have some countervailing
advantages, including their open-ness to continued contestation about meaning.101 But
just as not everything needs to be resolved by an authoritative text, so too not everything
needs to be as open-textured as adjudicated constitutionalism may tend to be.
Second, amendment in response to judicial error is an important check on the
judiciary, particularly given the unlimited tenure for the Article III judiciary and the
absence of a mandatory retirement age. Retired Justice John Paul Stevens recently
called for six different amendments, each to respond to six lines of judicial decisions
he argues are in need of correction.102 The role of amendment in maintaining the
See also Richard Albert, The Expressive Function of Constitutional Amendment Rules, 59 McGill L. J. 225,
234 (2013) (noting the possibility that the amendment process will increase public expectations that the
change will be honored). Albert quotes other scholars elaborating the point: “The publicity accompanying the change may, in fact, increase public expectations that the change will be honored by the other
branches [of government], raising the costs of evasion or under-enforcement.” Id. (quoting Brandon
P. Denning & John R. Vile, The Relevance of Constitutional Amendments: A Response to David Strauss, 77 Tul.
L. Rev. 247, 279 (2002)).
100
See Dennis Mueller, Constitutional Democracy 223 (1996), cited in Vermeule, supra note 72, at 266.
101
Heather Gerken, The Hydraulics of Constitutional Reform: A Skeptical Response to Our Undemocratic
Constitution, 55 Drake L. Rev. 925, 929–932 (2007) (treating Bruce Ackerman, David Strauss, William
Eskridge and John Ferejohn, and Reva Siegel, inter alia, as advocating/describing forms of “informal”
constitutional amendment).
102
John Paul Stevens, Six Amendments: How and Why We Should Change the Constitution (2014) (arguing that
the “anti-commandeering” rule of Printz v. United States, 521 U.S. 898 (1997); the failure of the Court
99
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democratic roots of a constitution may be more important in a country like the United
States, where great stability in judicial attitude can persist across multiple presidential
elections, depending on contingencies of aging, than in countries with more regular
turnover in their constitutional courts. And correction by amendment is, arguably,
more consistent with the rule of law and with the legitimacy of courts than judicial
overruling.103 Opponents of amendment seem to assume that judicial overruling
poses no threat to the rule of law; but I am not sure why this would be so: any authorized changes from existing rules—whether by amendment, statute, or new judicial
decisions—holds some threat to stability and rule of law values.104
Third, as Adrian Vermeule has argued, it is sometimes a benefit that broader ranges
of people participate in determining fundamental legal constraints.105 Legislators,
themselves, are likely to be representative of a broader range of views than the nine
justices who sit on the US Supreme Court, thereby providing more “public” involvement even in the proposal for amendment.106 Moreover, the US amending process
draws on a much wider range of the public than those who can participate in litigation, and offers different kinds of opportunities for participation than does participation in social movements.
Moreover, the proposal of an amendment by Congress and subsequent responses
in the states—even if not in the end sufficient to ratify—may influence jurisprudence
in directions similar to those of the amendment itself.107 Adjudicated results may be
unstable unless supported by political mobilizations; thus, adjudicatory decisions are
likely to work best when they harmonize with more broadly held views. Even unsuccessful amendment proposals can sometimes shift constitutional understandings: the
unsuccessful fight for the Equal Rights Amendment (ERA) (first introduced in 1923,
but not sent out to the states by Congress until 1972), may have contributed to—or
could be seen as of a piece with—social movements leading to changed understandings of gender that underlay the Court’s change in equal protection jurisprudence to
provide a substantial part—though probably not the whole—of what the adoption of
the ERA would have accomplished. 108 Reva Siegel has drawn attention to the way in
to address political gerrymandering; the campaign finance decisions, especially since Citizens United;
death penalty jurisprudence; sovereign immunity case law; and the recent reinvigoration of the Second
Amendment, should all be remedied by specific, proposed amendments to the Constitution’s text).
103
Vermeule, supra note 72, at 248.
104
Cf. Planned Parenthood of SE Pa. v. Casey, 505 U.S. 833, 854–869 (1992) (plurality opinion) (arguing at
length about role of stare decisis in maintaining respect for the Court and the Constitution as law).
105
See Vermeule, supra note 72, at 268.
106
See id. at 263 (suggesting that legislators bring an enlarged perspective to constitutional problems,
unhampered by the cognitive biases that dealing with single concrete cases imposes on courts). However,
the incentives for keeping a close eye on the present and near-term is much greater for members for
Congress, who must raise money and run for office in a close-to-continuous cycle, than it is for members
of the federal Article III judiciary, for whom tenure and salary protections provide the freedom to focus
on long-term good.
107
See Dixon, supra note 26, at 98 (noting that the formal amendment process may provide space for social
and political movements to push courts’ interpretations in new directions).
108
See Reva B. Siegel, Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the
de Facto ERA, 94 Cal. L. Rev. 1323 (2006); cf. Strauss, supra note 8, at 1476–1478.
The (myth of un)amendability of the US Constitution
597
which ERA proponents envisaged that the political mobilization for the amendment
could have positive effects on adjudicated understandings of gender equality.109 Thus,
focusing only on the difficulty of formal amendment may understate the capacity of
those amending procedures to influence constitutional development even when the
formal requisites are not met.
Finally, some use of the amending process would be consistent with recognizing the
idea of constitutional imperfection and the roots of the Constitution in more active
forms of democratic consent.110 The amendment provisions of the Constitution represent an important reminder that instruments made by human beings are imperfect (as may be judicial decisions interpreting those provisions), and of the need for
humility about quality of existing law. Thus, “absent flagrant disregard for constitutional language, some amendments will be required as defects become apparent, or
changes are desired.”111 Some use of the amending process should be possible without
threatening public attachment or affection towards the Constitution as a whole.112
Refreshing the Constitution, through resort to amendments to clarify and put into the
basic law a fundamental public norm—possibly, for example, towards reducing the
role of highly concentrated forms of wealth in elections—might even increase public
attachment, especially as those amendments are announced and solemnized through
appropriate formalities.113
This is not to suggest that judicial development and change of constitutional law
over time is illegitimate or anti-democratic. The legitimacy of judicial review is beyond
question at this point in the United States—legally, morally, and sociologically. But
judicial review is connected through much more indirect processes to developing
See Siegel, supra note 108, at 1367–1368; see also id. at 1363, 1370–1413.
For discussion of the importance of public participation in democratic constitution-making, see, for
example, Colón-Ríos, supra note 5; Joel Colón-Ríos, New Zealand’s Constitutional Crisis, 24 New Zealand
U. L. Rev. 448 (2011).
111
Denning & Vile, supra note 99, at 275.
112
Because the rigorous amending process is itself a steep obstacle to too-frequent amendment, it is not
clear whether systematic criteria identifying occasions for amendment are really necessary. Larger scale
changes, or departures from clear text, seem appropriate subjects of amendment; the former for reasons
of democracy, the latter for rule of law reasons. Because of the valuable settlement function of the Court,
reversal of its decisions through amendments should be undertaken only where there is a broad consensus of error. On the competing benefits of adjudication and constitutional amendment, Vermeule argues
for amendments on issues involving value choices on which broad public participation is appropriate, as
compared to “technical” improvements (as in dormant commerce clause caselaw); similarly, “systemic”
change should be made by amendment, while change such as the technological updating of the Fourth
Amendment by courts; and, he argues, where change should be irreversible—as in rules distributing
political power that are likely to be controversial ex post, e.g., presidential succession—amendment is better. Vermeule, supra note 72, at 267–269. These criteria, however, will themselves be subject to contest;
whether, for example, the Fourth Amendment’s application to new technologies is a question of “values”
or of “technical” updating may be quite contested. In the actual moment where an issue about amendment arises, it will typically, in the United States, be because existing law obstructs the accomplishment of
a politically desired goal; depending on the intensity of public feelings, such criteria may prove less useful
for guiding political discussion of resort to amendment than they are to constitutional theory.
113
See infra, text at notes 117–121 (discussing Beetham). On the benefits of formal amendment for the rule
of law, see Richard Albert, Constitutional Amendment by Stealth, 60 McGill L. J. (forthcoming 2015).
109
110
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public views about constitutional values, and long time lags may exist depending on
accidents of the appointment process and medical histories and life spans of those
appointed. And while the standard interpretive approaches of constitutional law
have over time looked not only at text, original meaning, and precedent but also at
developing values, historic practice, and pragmatic consequences,114 the application
of constitutional law is a place where tradition meets present needs; by virtue of its
embeddedness in a common law system of adjudication judicial review is likely to proceed incrementally; the past can thus prevail over present understandings for long
periods. It is not an indictment of judicial review to suggest that some direct use of
the tools of political democracy—i.e., voting on proposed constitutional changes in
Congress and in the states—is valuable in sustaining a healthy balance among institutions and processes in the authoritative articulation of constitutional law.115
This conclusion is reinforced by considering more generally the elements of constitutional legitimacy.
3.3. Constitutional legitimacy and consent
Within US constitutional theory, constitutional legitimacy is sometimes described
as deriving entirely from the degree to which the Constitution can be understood to
embody the will of the particular people of the United States.116 If this were correct,
the relatively infrequent resort to formal amendment would be highly anomalous and
in need of even greater justification. However much one can argue that public acquiescence in constitutional interpretations is equivalent to consent, it seems likely that
a more active form of democratic engagement on constitutional fundamentals would
yield some differences to those produced through the incremental process of adjudication. But there is sound reason to think that what gives constitutions—and their
amendments—legitimacy is far more complex, and can be understood to depend on
several components.
David Beetham, a theorist of political power and democracy, has argued that the
legitimacy of power can be understood through three perspectives: (i) “legal validity”—referring to the acquisition and use of power through existing rules; (ii) the
“moral justifiability” of power relations, that is, the degree to which the rules for
acquiring and exercising power are justified in light of the beliefs of both dominant
and subordinate groups in the society; and,(iii) “evidence of consent,” particularly
by the “subordinate to the particular power relation.”117 Writing of the concept of
See Richard H. Fallon, Jr., A Constructivist Coherence Approach to Constitutional Interpretation, 100 Harv.
L. Rev. 1189 (1987); Vicki C. Jackson, Multi-Valenced Constitutional Interpretation and Constitutional
Comparisons: An Essay in Honor of Mark Tushnet, 26 Quinnipiac L. Rev. 599 (2008).
115
On the benefits of formal amendment, in terms of predictability, the rule of law, and “constitutional adaptation,” in light of the “democratic deficits” of adjudication, see William Scheuerman, Constitutionalism in
an Age of Speed, 19 Const. Comment. 353, 378–382 (2002).
116
For emphasis on the role of “the People” in the constitutional founding, see Akhil Reed Amar, Of
Sovereignty and Federalism, 96 Yale L. J. 1425, 1439 (1987) (asserting that “the Federalists leaned upon
their new understanding of the sovereignty of the People” and that “this single idea informs every article
of the Federalist Constitution”). Cf. Barry Friedman, The Will of the People (2009).
117
David Beetham, The Legitimation of Power 4–16 (2d ed. 2013).
114
The (myth of un)amendability of the US Constitution
599
legitimacy in constitutional law, Richard Fallon has likewise argued that there are
“three distinct kinds of criteria that in turn support three distinct but partly overlapping concepts of legitimacy—legal, sociological, and moral.”118 These two accounts,
though similar, differ in their treatment of consent.119 Beetham explicitly links consent, as a legitimating factor, to certain formalities: “evidence of consent expressed
through actions which are understood as demonstrating consent within the conventions of a particular society.”120
These frameworks of analysis suggest that constitutional legitimacy is more complex than can be captured by invocation of the “will of the people,” or the “constituent
power,” at any given moment. Rather, constitutional legitimacy rests on three elements: the roots of the constitution (or its amendment) in positive consent or active
acceptance by the people who it governs; the constitution’s (or amendment’s) embodiment of good and/or just principles;121 and the constitution’s (or amendment’s) compliance with or promotion of the rule of law.122 These considerations overlap: for
example, consent contributes to sociological legitimacy and may also be understood
as required by the rule of law, to the extent that a constitution provides rules for its
own amendment; consent also sounds in the kind of good principles on which many
political theories ground the authority to govern. (Thus, popular consent may be
understood not only as a necessary form of sociological acceptance but also as a morally legitimating factor,123 and as a separate criterion for legitimacy in its own right.)
But these considerations do not fully overlap: for example, a constitutional text may
embody an immoral rule of law (e.g., the now-defunct Fugitive Slave Clause of the US
Constitution) or one inconsistent with good government (as Levinson has argued is
true of the requirement that each state, regardless of population, have two Senators);
yet the rule of law and its emphasis on obedience to controlling law until it is lawfully
changed would tend to support their legitimacy.
Richard H. Fallon, Jr., Legitimacy and the Constitution, 118 Harv. L. Rev. 1787, 1789 (2005)
For Beetham, Weber’s construct of legitimacy (as resting on people’s beliefs about legitimacy) is erroneous, failing to focus on the reasons for a people’s belief in the legitimacy of their government. See Beetham,
supra note 117, at 9–14 (“A given power relationship is not legitimate because people believe in its legitimacy but because it can be justified in terms of their beliefs . . ., how far it conforms to their values or
standards, how far it satisfies the normative expectations they have of it.”) On this account, acceptance as
a legitimating factor is integrally linked to the justifiability of the regime in terms of its justness or goodness. See id. Fallon is more accepting of Weber’s formulation, while emphasizing a reading that requires
something more active than mere resignation. See Fallon, supra note 118, at 1795–1796.
120
Beetham, supra note 117, at 9, 12. This point about formalities can be linked to the formal amendment
process.
121
Cf. Beetham, supra note 117, at 137 (discussing distinction in moral philosophy between the “good” and
the “right,” drawing a parallel to the importance for government action to have both a “morally authoritative source” and “an ability to satisfy the ends” which justify its use of power, both of which are elements of legitimacy).
122
See Jackson, supra note 36, at 70.
123
Fallon, supra note 118, at 1796–1798, 1848–1850; Jackson, supra note 36, at 48 (noting that the three
components of constitutional are overlapping; “The ‘just or good principles’ that make up constitutionalism might be understood to include rule-of-law and democratic self-governance, thus complicating the
supposed tension between consent and just principles.”)
118
119
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The relative weight of these considerations will vary in different contexts and institutional settings.124 To the extent constitutions rest on power, consent may be a necessary condition for legitimacy, though it can be manifested in different ways.125 But if
consent by the people is necessary, it may not be sufficient, for reasons in part relating to why consent is valued at all and in part relating to the transnational setting in
which constitutions must function.
Walter Murphy has argued that consent is valued because of human capacities
for autonomous moral reasoning and, therefore, constitutional provisions inconsistent with recognition of these capacities in others can be found unconstitutional.126
Quoting Joseph Raz, Murphy argues, “[c]onsent can function as a legitimator only to
the extent that the people agree as reasoning, morally autonomous, and responsible
human beings. . . . ‘[T]o the extent that the validity of consent rest[s] on the intrinsic
value of autonomy it cannot extend to acts of consent that authorize another person to deprive people of their autonomy.’”127 A similar argument can be developed
grounded on equality as the basis for giving legitimacy to democratic consent: if consent to laws enacted by majorities legitimates those laws because we presume human
beings equal by virtue of their being human, and majority voting is a decision rule that
recognizes this equality, then use of majority voting to deprive some of their equality is
inconsistent with the justification for the decision procedure:128 if the reason justifying
voting and the majoritarian principle is an underlying moral commitment to equality
of persons, then even a supermajority deliberative decision to entrench slavery would
On the importance of not focusing only on sociological acceptance, see Beetham, supra note 117, at 9–10;
cf. Fallon, supra note 118, at 1793 (“[C]onstitutional law does not rest on a single rock of legitimacy, . . .
but on sometimes shifting sands.”).
125
Cf. Fallon, supra note 118, at 1792 (drawing on Hart to argue that “the legal legitimacy of the Constitution
depends much more on its present sociological acceptance (and thus its sociological legitimacy) than
upon the (questionable) legality of its formal ratification”)). Thus, for Fallon, the quality of sociological
acceptance is the most fundamental to constitutional legitimacy.
126
See Walter F. Murphy, Consent and Constitutional Change, in Human Rights and Constitutional Law 123, 125
(James O’Reilly ed., 1992). (“[I]nsofar as the claim for consent as the great political legitimator has validity, it draws that validity from a concept of human nature. Because it is this underlying notion of what
it means to be a human being that confers upon consent what legitimating power it has, this notion also
places limits on consent’s power to legitimate.”) Murphy further explains: “[W]hat began as an argument
for consent as the ultimate legitimator has turned into an argument for a closely related but more fundamental value, that of human dignity, based on a capacity to reason, a need for moral autonomy, and an
ability to make morally binding commitments.” Id. at 142.
127
Id. at 142 (quoting Joseph Raz, Government by Consent, in 29 Nomos: Authority Revisited 76, 87 (J. Roland
Pennock & John W. Chapman eds., 1987)).
128
The idea of a “pouvoir constituant” is sometimes invoked to justify the trumping power of a constitution.
But in the concept of constituent power there is a degree of reification as singular of what is often a messy
and contested situation. It is often more accurate to talk about degrees of legitimacy of constitutional
processes, than of binaries (e.g., constituent power, yes or no); process, inclusiveness, participation and
deliberation would all bear on this question of degree. For an effort to impose substantive and procedural
constraints on recognition of a legitimate constituent power, see Kim Lane Scheppele, Unconstitutional
Constituent Power, in a volume on constitution-making, edited by Rogers Smith and Richard Beeman (U.
Penn. Press, forthcoming 2016).
124
The (myth of un)amendability of the US Constitution
601
not be legitimated by its basis in democratic consent, because the premise for the legitimating force of consent are legitimating would be absent.129
Moreover, increasingly, constitutional legitimacy may depend on meeting minimal
transnational norms (e.g., against wars of aggression, or piracy, or torture), as well
as being consented to by the people a constitution most directly controls. The reasons
for the increased importance of what we might call external legitimacy are many and
are discussed elsewhere.130 Transnational discourses may at times converge on the
identification of principles of justice or public morality in ways that both reflect and
in turn influence constitution-making efforts. For example, there is now widespread
support—at least rhetorically—for judicial independence as a fundamental feature of
governance.131 Whether the violation of norms of justice or good government is sufficient, by itself, to make constitutional amendments or revisions subject to judicial
review is, of course, a separate and distinct question,132 though it has been argued that
transnational constitutional practices can serve as a useful guide to those courts that
do engage in substantive review of procedurally proper constitutional amendment.133
But notwithstanding important other sources of legitimacy, having roots in popular consent remains a central feature of any constitution that provides the basic law
for a constitutional democracy or democratic republic. Indeed, consent may—over
time—be the most central feature of sustainable constitutionalism, a necessary if
not sufficient feature. Consent, to be sure, can be given in different ways; important
change may legitimately occur in constitutional law through processes other than
formal amendments.134 But almost all written constitutions make provision for their
Difficult questions may arise because any law in some respects draws classifications and could be characterized as discriminating against those disadvantaged by it. Most such disadvantages are not inconsistent
with fundamental human equality, though drawing this line can be challenging. It is the principle by
which the legitimating force of consent is constrained with which I am concerned, not the difficulty of
determining when those constraints are activated.
130
See, e.g., Vicki C. Jackson, Constitutional Engagement in a Transnational Era (2010).
131
See, e.g., Universal Declaration of Human Rights, art. 10 (“Everyone is entitled in full equality to a fair and
public hearing by an independent and impartial tribunal, in the determination of his rights and obligations
and of any criminal charge against him.”); International Covenant on Civil and Political Rights arts. 14(1),
2.3(b); Reference re Remuneration of Judges of the Provincial Court (PEI), [1997] 3 S.C.R. 3 (Can. Sup. Ct.)
(treating judicial independence as an unwritten constitutional norm attaching to all levels of judges, notwithstanding distinctions drawn in the constitution’s text); see generally Jackson, supra note 130, at 98–101.
132
That a provision might not be wholly legitimate does not necessarily imply that courts could declare
it unlawful. See Jackson, supra note 36, at 70–72. This might depend on the weight of the different
factors; for example, it has been argued that U.S. courts probably should not declare a procedurally
proper amendment unlawful on substantive grounds, given the weight of iterated democratic decisions
that are required to produce an amendment. See id. at 71; Vicki C. Jackson, Reformas Constitucionales
Inconstitucionales: Una Mirada a la Teoria Constitucional y el Constitutionalism Transnacional, in Libertad de
expression: Entre tradicion y renovacion 135, 191–192 (Esteban Restrepo Saldarriaga ed., 2013).
133
See Rosalind Dixon and David Landau, Transnational Constitutionalism and a Limited Doctrine of
Unconstitutional Constitutional Amendment, 13(3) Int’l J. Const. L. 606 (2015).
134
On the role of constitutional adjudication in incremental processes of constitutional change, see David
A. Strauss, The Living Constitution (2010). Others have advanced theories by which the U.S. constitution
legitimately can be amended by means other than those set forth in art. V. See e.g., Bruce Ackerman,
Higher Lawmaking, in Responding to Imperfection: The Theory and Practice of Constitutional Amendment
(Sanford Levinson ed., 1995); Akhil Reed Amar, The Consent of the Governed: Constitutional Amendment
Outside Article V, 94 Colum. L. Rev. 457 (1994).
129
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own amendment,135 reflecting the normative demands that constitutions rooted in
basic propositions of democracy be subject to revision through processes in which
the people can formally participate, either directly or though their elected representatives, in order to remain instruments of self-government.136 The Article V process has
advantages in focusing public attention on a particular text, and using specified procedures known in advance to constitute lawful formal acts of constitutional amendment
through publicly participatory processes.
These understandings provide further reasons to modulate the intense normative
resistances to using the amendment process in the United States. For a constitution
to remain the legitimate product of “we the people,” amendment—through actions
in which the public participates and which are formalized through specific events of
proposal and ratification—has an important role to play.137
4. Comparative reflections and conclusion
This paper has argued, first, that the difficulty posed by formal procedures in obtaining
textual amendments of the US Constitution is at times somewhat overstated; second,
that overstatement of the difficulty may become “self-fulfilling”—that is, may contribute to increasing the difficulty of formal amendment; that together with normative
arguments against the use of amendment to effectuate legal change, the perception
of difficulty may become even more self-fulfilling; and finally, that notwithstanding
important normative arguments for caution in seeking constitutional amendment, a
constitution that was truly not amendable by the formal methods that it provides for
popular input (either directly or through representatives), would be inconsistent with
democratic constitutionalism. I elaborate here on this last point, from an internal perspective on US constitutionalism and from a comparative perspective.
There may be as much reason to be concerned about “amendophobia”—that is, an irrational fear about ever resorting to amendment, even when the occasion is appropriate—as
to worry about what Sullivan termed “amendmentitis,” a too ready resort to amendment
in response to political problems or judicial decisions.138 To the extent it exists, the myth of
impossibility of amendment may do harm to the democratic roots of US constitutionalism, contributing to a diminution in the Constitution’s democratic legitimacy.
There is no question that the US amendment procedures are difficult. Some rigidity expressed in supermajority, multi-vote procedures for amendment is not itself
See Elkins, Ginsburg & Melton, supra note 4; Venice Commission Report, supra note 11; see also Jonathan
L. Marshfield, Decentralizing the Amendment Power, forthcoming in 19 Lewis & Clark L. Rev., U. Ark. Res.
Paper No. 15-3 (Feb. 9, 2015), available at SSRN: http://ssrn.com/abstract=2578091, at 8 n. 40 (reporting that as of 1978, over 96% of national constitutions included amending procedures and at present,
all 191 existing national constitutions included such procedures).
136
See Jed Rubenfeld, Freedom and Time: A Theory of Self-Government 173–176 (2001).
137
See supra text accompanying note 120. Cf. Michelman, supra note 93, at 1359 (describing the “addictive
theory” against constitutional amendment as “conniv[ing] with a terribly sad constitutional fate . . . [a]
political world, at bottom, all distrust and no democracy”).
138
Compare Jackson, supra note 61, at 416, 436–439, 452 (discussing “Amendophobia”) with Sullivan,
supra notes 2, 79 (discussing “Amendmentitis” or “amendment fever”).
135
The (myth of un)amendability of the US Constitution
603
necessarily an anti-democratic feature. Multiple supermajority voting requirements—
and even, arguably, some malapportionment in voting requirements—for constitutional amendment can be understood as features of, or efforts to assure, a more
deliberative form of democracy than simple one-off majority voting provides.139 To
be sure, the US voting rules allow very small minorities of the population to block
amendment, if the defenders of the status quo are concentrated in small population
states.140 But in some respects, it is the degree to which the amendment process has
been foresworn in preference to seeking change through other means (especially adjudication)—the belief that the constitution is and should be unamendable—that is a
key “anti-democratic” feature of US constitutionalism. This belief is sustained in part
by a reverence for the Constitution, in part by important normative arguments against
ready amendment, and in part, by mistaken beliefs as to its impossibility. To the extent
formal amendment is actively foresworn, it deprives the US Constitution of important
roots in democratic consent on which its long-term legitimacy may depend.
The provisions for formal amendment do not exist or operate in a vacuum but are
part of an inter-related set of constitutional arrangements by which both constitutional continuities and constitutional transformations are made possible. Judicial
review in the United States is distinctive from that in many other constitutional
democracies. It extends to many important questions of individual rights, as well as
to the enforcement of structural limits; in this respect it is broader than the scope of
judicial review in, for example, Australia. It is conducted by both state and federal
judges, unlike in many continental legal systems; but it operates under the ultimate
supervision of the US Supreme Court, whose nine justices are appointed for indefinite
terms of office, with no fixed retirement age or clear conventions relating to the timing of resignation; in popular parlance, they are appointed “for life.”141 The regular
input provided by fresh members to high constitutional courts that occurs in many
other systems is lacking. In most countries that rely on specialized constitutional
Cf. John Ferejohn and Lawrence Sager, Commitment and Constitutionalism, 81 Tex. L. Rev. 1929, 1933,
1957–1958 (2003) (noting that democracy is an “essentially contested concept,” praising Article V as
necessitating mobilization of geographically far flung majorities over “a substantial period of time” and
arguing that “[w]ith that geographical diversity there is likely to come a significant diversity of perspective,
and, as a logical corollary, a generality of consensus”); Christopher Eisgruber, Constitutional Self-Government
10–25 (2001) (arguing that both judicial review and supermajority requirements for amendment are
designed to advance democratic legitimacy, relying on non-majoritarian concept of democracy).
140
An amendment in the United States must be ratified in three-fourths of the states. Three-fourths of 50
states would be 38 states. The smallest 13 states—Wyoming, Vermont, North Dakota, Alaska, South
Dakota, Delaware, Montana, Rhode Island, New Hampshire, Maine, Hawaii, Idaho, and West Virginia—
which include less than 16 million people, could thus in theory block amendments supported by the
other 37 states, with over 290 million in population. See supra note 34.
141
Chief Justice William H. Rehnquist, first appointed to the Court in 1972, died in office at the age of 80, after
a thyroid cancer diagnosis. See Linda Greenhouse, William H. Rehnquist, Chief Justice of Supreme Court, is Dead
at 80, N.Y. Times, Sept. 4, 2005. Others have left because of poor health in their later years: Justice Thurgood
Marshall resigned in July 1991 because, in his own words, “I’m getting old and coming apart”; he died in
January 1993, at age 84. See Linda Greenhouse, Thurgood Marshall, Civil Rights hero, Dies at 84, N.Y. Times,
Jan. 25, 1993. Justice William F. Brennan resigned after a stroke in 1990 at age 84, and died seven years later
in 1997. See David Savage, Supreme Court Legal Titan Brenan Dies, L.A. Times, July 25, 1997. Other justices
have resigned while still apparently in good health (including Justices O’Connor, Souter, and Stevens).
139
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courts, the justices serve for a fixed and nonrenewable term of years (in Germany,
for example, for twelve years), and are then replaced by political actors with new
members. Australia and Canada, with more “generalist” supreme courts, as in the
United States, originally provided for indefinite tenure in office; their justices now
face mandatory retirement at age 70 or 75, as a result of constitutional amendments
in the mid-twentieth century.142 As of this writing, four Justices of the US Supreme
Court are over the age of 75.143
Moreover, the decisions of these very long-serving justices, many of whom at any
moment in time may have been appointed by political actors whose views have since
been rejected by the polity, exercise a strong power of judicial review, given widespread
acceptance of the “supersupremacy” of the Court’s decisions—the presumption that
they are binding in their holdings and reasoning on other branches and levels of government. To be sure, there are some more “departmentalist” moments in US constitutional history, where presidents, for example, have acted on a matter within their
constitutional competence on a view of the Constitution different from that of the
Court, as when President Andrew Jackson vetoed the national bank bill on constitutional grounds even though the Court had previously upheld national power to provide for such a bank.144 But traditions of compliance with Supreme Court decisions
(and reasoning), even when legislators and executive officers disagree with them are
strong, as evidenced by Vice-President Gore’s acceptance of the Supreme Court’s decision on the 2000 election.
To foreswear amendment as a mechanism for legal change, in light of all of these
features of US constitutional law, may place simply too much weight on judicial
appointments and the adjudicative process as mechanisms to provide appropriate amounts of constitutional flexibility and change. This is not to say that every
Supreme Court decision with which large majorities disagree should be subject to
amendment: these decisions may be correct, in terms of principle, and should be
defended and argued in public fora; some may have effects that are capable of being
contained through subsequent legislative and adjudicatory development. But it is,
rather, to argue that amendment should not be presumptively foresworn, taken off
the table of possible responses; that doing so removes a potentially significant legal
tool for maintaining a peaceful and civilized form of constitutional contestation in a
constitutional democracy.
A brief, more comparative perspective: A certain degree of “US exceptionalism”
appears to be a feature of contemporary comparative constitutionalism; it is increasingly
common to assert the outlier status of the United States on a range of contemporary
See Constitution Act, 1960, Eliz. II, c. 2 (UK) (establishing a retirement age of 75 for Canadian federal
judges, including Supreme Court justices); Constitution Alteration (Retirement of Judges) 1977, Act No.
83 (Australia) (amending the constitution to establish a retirement age of 70).
143
Justice Ruth Bader Ginsburg was born in 1933; Justices Anthony Kennedy and Antonin Scalia both were
born in 1936; and Justice Stephen Breyer was born in 1938. See Biographies of Current Justices of the
Supreme Court, Sup. Ct. U.S. Website, http://www.supremecourt.gov/about/biographies.aspx.
144
See Mark Graber, Hollow Hopes and Exaggerated Fears: The Canon/Anticanon in Context, 125 Harv. L. Rev.
For. 33, 35 (2011); McCulloch v. Maryland, 17 U.S. 316 (1819).
142
The (myth of un)amendability of the US Constitution
605
constitutional issues.145 The US Constitution might appear to be exceptional in its difficulty of amendment, no less than in its present commitment to a version of freedom of
expression at odds with that of many other constitutional democracies (and implicit in
leading human rights covenants as applied to “hate speech”), or in its lack of commitment to social welfare rights. But in Australia constitutional amendments face considerable hurdles,146 and some Canadians assert that their constitution has become impossible
to amend.147 It is important in this area as in others not to overstate the degree of US
exceptionalism—important for accurate comparative understandings and important,
as well, to avoid contributing to the unhealthy, self-sustaining effects of prophecies of
impossibility of amendment within the United States.
It is also important to bear in mind the contexts within which particular functions, doctrines, or institutions operate, to bring to bear what I have elsewhere described as a contextualized form of functionalism in making comparisons.148 Amendment rules must be
analyzed not only in how they operate in combination with such features as the appointment mechanisms for judges, the structures for judicial review, and the degree of finality
or supremacy accorded judicial interpretations, but also in light of national self-understandings about the degree to which a constitution should be subject to amendment.
Such self-understandings, or conceptions of national identity as bound up in particular
historical documents, may themselves be or become parts of the socio-legal culture in
which constitutions operate.149 Appreciating the importance of such self-understandings
about constitutions and their amendment affords fascinating opportunities for comparison,150 while at the same time raising epistemological cautions about efforts to derive generally applicable, functional “rules of thumb” for constitutional design.
See, e.g., David Law & Mila Versteeg, The Declining Influence of the United States Constitution, 87 N.Y.U.
L. Rev. 762, 854 (2012).
146
Australia has had eight successful amendments enacted since the constitution was adopted in 1900.
See Scott Bennett, The Politics of Constitutional Amendment, Research Paper no. 11 2002-03, Parliament
of Australia, available at http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/
Parliamentary_Library/pubs/rp/rp0203/03rp11 (table 1, showing that 44 amendments have been proposed by the legislature and put to a national referendum, of which 8 succeeded). Whether one regards
the United States as having had 27 amendments, or only 17 amendment “events” (treating the first ten
as of a piece, see Stephen Griffin, American Constitutionalism: From Theory to Politics (1996)), the U.S. “rate
of amendment” does not appear radically lower than Australia’s.
147
Constitution Act 1982, § 41 requires unanimous approval for certain fundamental subjects, including,
for example, some issues relating to use of the English or French language, aspects of provincial representation in the House of Commons, the composition of the Supreme Court, and the amending procedures
themselves. See also supra note 9.
148
See Vicki C. Jackson, Comparative Constitutional Law: Methodologies, in Oxford Handbook of Comparative
Constitutional Law 72 (Michel Rosenfeld et al eds. 2012) (discussing “contextualized functionalism”).
149
For thoughtful exploration of the role of constitutional culture in the rate and form of constitutional
change, and of the difficulties of defining degrees of rigidity in amendment, see Ginsburg & Melton, supra
note 38.
150
Cf. Albert, supra note 99 (exploring expressive functions of amending provisions).
145