Explicit and Authentic Acts: Amending the U.S. Constitution, 1776-1995.

• Author: Chemerinsky, Erwin

Explicit and Authentic Acts: Amending the U.S. Constitution, 1776-1995. By David E. Kyvig. Kansas: University Press of Kansas. 1996. Pp. xx, 604. $55.

The ultimate measure of a constitution is how it balances entrenchment and change. On the one hand, a constitution differs from all other laws in that it is much more difficult to revise. For example, the next session of Congress can amend or repeal a statute, but altering the U.S. Constitution requires a complex process involving supermajorities of both houses of Congress and the states. A constitution thus reflects a desire to place a society's core values of governance -- such as the structure of government and the rights of individuals -- in a document that is hard to revise. By enacting a constitution, society limits itself in an effort to protect the values it most cherishes. For a constitution to achieve this goal it must endure.

But in order for a constitution to endure, it must contain mechanisms for adaptation to changing circumstances. Changes in social organization, in technology, and in morality all require that the constitution evolve. The agrarian slave society of 1787 is so vastly different from the world of the coming twenty-first century that it is unthinkable that the understandings of 200 years ago could solely govern modern society. Those drafting a constitution cannot possibly imagine the myriad of issues that will arise decades and centuries later.

A constitution thus must mediate the competing desires for entrenchment and flexibility, for stability and change. Sometimes constitutions emphasize the former and make revisions impossible or very difficult. Long ago, in ancient Greece, Lycurgus, the ruler of Sparta, insisted that his laws not be changed until he returned from a long journey.(1) Lycurgus then killed himself to ensure that the laws not be altered, and they survived for 500 years.(2) Some countries have constitutional provisions that are immune from revision. The constitutions of Germany and Brazil expressly state that the division of power between the national and local governments is not subject to amendment.(3) Morocco's constitution states that it may not be amended to eliminate the monarchy or Islam as the official religion.(4)

Nations that have experienced foreign occupation often have provisions limiting amendment in the case of future foreign invasions. For example, the constitution of the French Fourth Republic, adopted in 1946 in the wake of liberation from Nazi control, prohibited amendment of the constitution "in case of occupation of all or part of the metropolitan territory by foreign force."(5)

In fact, even the U.S. Constitution specifies certain matters that may not be changed, even by amendment. Article V, which details the amendment process, states that "no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and... no State, without its Consent, shall be deprived of its equal Suffrage in the Senate."(6) The two clauses in Article I that could not be changed prohibited Congress from banning the importing of slaves and prevented a direct tax unless it was apportioned based on the census.

On the other hand, some constitutions provide very little in the way of entrenchment or resistance to change. State constitutions generally are much easier to amend than the U.S. Constitution and have been amended much more frequently.(7) The doctrine of Parliament's sovereignty in Great Britain means that legislative acts trump the constitution. As Professor David E. Kyvig(8) observes: "As the concept of parliamentary supremacy emerged from notions that sovereignty belonged to the people rather than to the monarch and that Parliament legitimately represented the sovereign will, any thought of limiting Parliament's power to alter the terms of government faded away" (p. 20).

The key challenge for a constitution is to strike the optimal balance between entrenchment and flexibility. If a constitution makes change too difficult, it will obstruct necessary and desirable social reforms. Revolution will become the only way of altering the government. But if change is too easy, then a constitution fails to achieve its objective of protecting society's most cherished values from majoritarian control.

The amendment process is thus not peripheral to the constitution, but is its essence. Professor Kyvig's new book, Explicit and Authentic Acts: Amending the U.S. Constitution, 1776-1995, provides an excellent history of the amendment process, from the ratification of the Constitution until 1995. Professor Kyvig shows that from its inception, the amendment process was integral to the very existence of the Constitution. For example, at the state ratifying conventions, supporters of the Constitution could answer objections by pointing to Article V and the ability to change imperfections (pp. 81, 85). Unlike the Articles of Confederation, which required unanimous consent of the states for amendments, the Constitution offered a more realistic process for change. Thus, state calls for a bill of rights could be met, not by defeating ratification until a new constitutional convention was held, but by the amendment process (pp. 81-85). As Professor Kyvig notes, "At several crucial junctures in the struggle over ratification, most notably in the Massachusetts, Virginia, and New York conventions, the promise of amendment swung the balance in favor of acceptance" (p. 85).

Professor Kyvig's book describes, in detail the attempts, successful and unsuccessful, to amend the. Constitution since 1787. The book provides a wealth of fascinating facts. For example, I had not known that James Madison, the crucial figure in drafting the Bill of Rights, almost was not elected to the first Congress. Patrick Henry, Madison's foe, successfully kept the Virginia legislature from choosing Madison for the United States Senate and Madison's home county was gerrymandered into a largely anti-Federalist district (p. 95). Madison defeated his opponent, James Monroe, for the House seat only after promising his commitment to adding a bill of rights to the Constitution.

Even more important, I did not know that in 1861, on the eve of the Civil War, both houses of Congress ratified an amendment to protect the institution of slavery. The amendment, introduced by Thomas Corwin and supported by President Lincoln, provided: "No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State" (p. 151). The House of Representatives passed the amendment by a vote of 133 to 65, and the Senate did so by a vote of 24 to 12 (p. 151). The amendment was meant to prevent the Civil War, and it is frightening to fathom the course of American history if it had succeeded.

Kyvig's careful history of the amendment process shows how well Article V strikes a balance between entrenchment and flexibility. Over the course of American history, more than 10,000 amendments have been proposed through the mechanisms provided in Article V of the Constitution. Only thirty-three received approval by both the House and the Senate, and just twenty-seven have been ratified by the states. Yet, most of the ratified amendments, by any measure, were desirable revisions to the Constitution. The Bill of Rights was crucial to the ratification of the document and has been key in protecting basic liberties. The post-Civil War Amendments were essential in ending slavery and ensuring the federalization of fundamental rights. Many of the amendments were crucial in perfecting democracy by extending the franchise to blacks, to women, to the poor, and to eighteen-year-olds.

Professor Kyvig's history' of the amendment process, and consideration of the tension between constraint and change, raise two questions. First, what are the assumptions and implications of having a brief constitution that is relatively difficult to change? Professor Kyvig's book provides a powerful reminder that this is the core nature of the U.S. Constitution. Professor Kyvig's book reveals how much such a constitution is based on trust in the government it creates and how much it relies on a judiciary with the authority to interpret and adapt the constitution to a world so vastly different from what the Framers could have imagined.

Second, when should the Constitution be amended? In the past few years, countless proposals have been introduced in Congress to amend the Constitution to achieve goals ranging from balancing the budget, to allowing school prayer, to prohibiting abortion, to outlawing flag burning. In light of Professor Kyvig's history, is it possible to develop a theory of when amendments are worthy? Professor Kyvig's enterprise is historical, recounting the successful and unsuccessful attempts at amendment. Professor Kyvig offers no conclusions as to when the amendment process is appropriate and when it should remain unused. Yet his history offers an excellent vehicle for considering the proper use of the amendment process to preserve the delicate balance between entrenchment and flexibility.

This review essay uses Professor Kyvig's careful, well-written history as the starting point for examining these two questions. Although Professor Kyvig's book is not the first recent attempt to examine the amendment process,(9) it is the most systematic history to date. This excellent book should be of great interest to anyone interested in the...