The Curious Conservatism of Constitutional Amendment Politics in the United States

—Andrea Scoseria Katz, Washington University in St. Louis School of Law

[Editor’s note: This is one of our biweekly I-CONnect columns. For more information about our four columnists for 2020, please click here.]

A few days ago, an email popped into my inbox. It was a very typical email, the kind you delete dozens of every day: a watchdog group was soliciting money to fight back against “extremist” attacks on the Constitution. (However true the point about the U.S.’s constitutional health, this kind of language—plus the usual deluge of such emails—tends to stultify you after a while.) What did catch my attention, however, was the subject line: “The threat of an Article V Convention.”

The United States constitution is famously difficult to change.[1] Its amendment rule, found in the fifth article of the text, requires the assent of two-thirds of each legislative house plus three-fourths of the legislatures of the fifty states.[2] These demanding supermajorities are compounded by an amendment culture that tends strongly toward conservatism.[3] As early as 1862, a critic faulted Article V, not only for failing to stop the Civil War but also for quashing the spirit of American democracy: “Perhaps it may turn out that the article, instead of an instrument, as was intended, is an iron fetter, that must be broke, before free action can be attained.”[4]

All of which lends, in 2020, a certain irony to the warnings about constitutional revision sent to me by CommonCause, a progressive activist group whose own website loudly touts the fruit of its campaigning this year: “DEMOCRACY PREVAILS.” Democracy did, presumably, prevail in America in 2020 (notwithstanding the terrifying spectacle of an incumbent American president challenging the results of a free and fair election). But why does the thought of opening up the U.S. Constitution to stiffer currents of democracy elicit such panic in the left?

CommonCause is not wrong on the history: it has been a very long time since Article V amendment was a tool for progressive change. One has to go back, probably, to 1913-1920, when a series of amendments created a national income tax, gave women the vote, and abolished the indirect election of senators by state legislatures. That decade also saw an ill-fated national experiment with banning alcohol, one reason amendment politics shrank in importance during the twentieth century. Americans continued to pursue amendments, but these grew narrower in their ambitions or more technical, like the Twentieth Amendment (1933), which reset inauguration dates for the President and legislators, or the amendments of the 1960s and ‘70s, which essentially extended the Fifteenth Amendment’s (1870) protection of the right to vote to residents of Washington, D.C. and eighteen-year-olds.[5] Many transformative amendments also failed during this time, including a proposal to revive states’ power to draw malapportioned legislative districts, limited by the Supreme Court in the ‘60s; a popular proposal to abolish the Electoral College; and the celebrated Equal Rights Amendment, and an amendment to give Washington, D.C. full voting rights as a state.^[6]

With the exception of the anti-Electoral College movement, a conservative political thrust was obvious in all of these episodes, and amendment movements of the last thirty years support this view: amendments to permit prayer in public schools,^[7] criminalize flag-burning,^[8] mandate a balanced federal budget,^[9] make English the nation’s official language,^[10] and abolish the federal income tax^[11] have been advanced, among others.[12]

CommonCause’s fears are particularly acute because, in recent years, a conservative movement has sprung up calling, not just for a single amendment, but a new drafting convention altogether. Article V provides for one upon the request of two-thirds of the states, but such a convention has never been attempted in American history, and what substantive limits would exist on its power—what rules, indeed, it would adopt and who would dictate them—is largely unknown.[13] Progressives fear such a convention because the movement has powerful conservative backers, and an open-ended agenda could allow conservative activists to tack on a veritable smorgasbord of hoped-for policies, to wit, a rollback of church-state separation or reproductive rights, a denial of climate change, or the encoding of neoliberal economics. So far, 28 states have signed off on the plan; six more would trigger it.

American constitutional democracy is in a strange place. Constitutional revision can be a symbol of popular renewal and reinvigoration, but today, it is American conservatives who are embracing the consummate tool of the popular sovereign while progressives beat a retreat from pure democracy. Part of the explanation must be the lingering effects of populist president Donald Trump, though it would be a mistake to conclude that unfettered democracy is to blame for Trump’s rise to power. America’s malapportioned electoral system, underregulated system of corporate campaign financing, and concentrated media networks make its political system profoundly susceptible to manipulation of public opinion by elites. Institutional capture is an unavoidable factor in the American left’s dismayed turn from pure democracy. As CommonCause (correctly) wrote in its fundraising email, “[N]ow that this far-right agenda has been rejected by the voters [presumably, in the 2020 national elections], even more conservative mega-donors will open their checkbooks to help take this sinister effort over the top.” This is not the only source of distortion: in the U.S. case, the difficulty of amendment has led to legal gamesmanship and ingenuity of all the wrong sort, a politics that exploits procedural loopholes to etch ill-conceived ideas into the sidewalk before the cement hardens.

The U.S. needs a real democratic politics of constitutional amendment. Who will dare to design it?

Suggested citation: Andrea Scoseria Katz, The Curious Conservatism of Constitutional Amendment Politics in the United States, Int’l J. Const. L. Blog, December 23, 2020, at: http://www.iconnectblog.com/2020/12/the-curious-conservativism-of-constitutional-amendment-in-the-united-states/

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[1] For instance, a 2009 report by the Venice Commission contrasts a “balanced approach” to constitutional amendment, found in most countries on the continent, and which is “by comparison more flexible than for example the rather strict amendment rules in the US Constitution.” European Commission for Democracy Through Law (Venice Commission), Revised Draft Report on Constitutional Amendment, No. 469, CDL-DEM(2009)008 (Strasbourg, 26 September 2009).

[2] U.S. Const. art. V  (providing, in relevant part, “The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution … which … shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof …”).

[3] On the importance of amendment culture in determining constitutional rigidity in practice, Tom Ginsburg & James Melton, Does the Constitutional Amendment Rule Matter at All? Amendment Cultures and the Challenges of Measuring Amendment Difficulty (Coase-Sandor Institute for Law & Economics Working Paper No. 682, May 2014). On Americans’ prevailing attitude of constitutional worship, three excellent works are Sanford Levinson, Constitutional Faith(2012), Michael Kammen, A Machine That Would Go of Its Own (1986), and Mary Anne Franks, The Cult of the Constitution (2019).

[4] Sidney George Fisher, The Trial of the Constitution 33 (1862).

[5] See John R. Vile, Contemporary Questions Surrounding the Constitutional Amendment Process 14-22 (1993).

[6] On the gerrymandering debate, see Arthur Earl Bonfield, The Dirksen Amendment and the Article V Convention Process, 66 Mich. L. Rev. 949 (Mar. 1968). And see generally Baker v. Carr, 369 U.S. 186 (1962) (holding that apportionment was a justiciable matter, rather than a political question); Reynolds v. Sims, 377 U.S. 513 (1964) (applying the “one person, one vote” formula to both houses of the state legislatures). On the ‘60s-era movement to abolish the Electoral College, see Jesse Wegman, Let the People Pick the President: The Case for Abolishing the Electoral College 126-162 (2020); on the failure of the Equal Rights Amendment and the Washington D.C. amendment, see Jane Mansbridge, Why We Lost the ERA (1986); Mary Berry, Why the ERA Failed (1986); and Jules B. Gerard, The Proposed Washington D.C. Amendment (1979).

[7] See Bruce Dierenfeld, The Battle Over School Prayer: How Engel v. Vitale Changed America (2007).

[8] See Robert J. Goldstein, The Great 1989-1990 Flag Flap: An Historical, Political, and Legal Analysis, 45 U. Miami L. Rev. 19 (1990).

[9] See James Saturno & Megan Suzanne Lynch, Cong. Research Serv., R41907, A Balanced Budget Constitutional Amendment: Background and Congressional Options (2018).

[10] See Dennis Baron, The English-Only Question (1990).

[11] H.R. 25, 116^th Cong. (2019) (A bill to promote freedom, fairness, and economic opportunity by repealing the income tax and other taxes, abolishing the Internal Revenue Service, and enacting a national sales tax to be administered primarily by the States).

[12] To be sure, there have been progressive amendment causes, including eliminating private campaign funding and abolishing the Electoral College, but these are outweighed by the prevalence and strength of conservative amendment causes.

[13] U.S. Const. art. V (providing, in relevant part, “The Congress, …  on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments”). And see Vile, 127 (1993).