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

• Author: Vile, John

Of all the innovations of the U.S. Constitution, the process of providing for formal constitutional change through an amending process may be one of the most underappreciated. When properly functioning, such a mechanism renders violent revolution unnecessary by allowing for legal changes without the resort to violence. A well-constructed amending mechanism also helps guard a constitution against temporary excitements or the addition of a profusion of trivial policy matters.

I

Article V of the United States Constitution provides that amendments must be proposed by two-thirds majorities of both houses of Congress and ratified by three-fourths of the states; alternatively, two-thirds of the states can petition Congress to call a constitutional convention to propose amendments.(3) Before this process was even adopted, James Madison defended it as guarding "equally against that extreme facility, which would render the Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults."(4) Throughout its early history, observers generally lauded the amending process, and the early success of the Bill of Rights and the Eleventh and Twelfth Amendments undoubtedly contributed to its popularily. Later, the process's apparent immobility in the face of impending Civil War and a forty plus year hiatus from 1870 through 1912, during which no amendments were adopted, led to renewed skepticism about the procedure's efficacy. Since then, belief that the amending process is too easy, too difficult, or just about right has varied from one decade to another with the fortunes of amendments that have been proposed and adopted.

Commentators have also increasingly recognized that the formal amending process in Article V is but one means of introducing change into the political system. For almost sixty years now, the Supreme Court's "shift in time that saved Nine" in the wake of Franklin Roosevelt's decision to attempt to pack the Court rather than seek amendments legitimizing the New Deal, has exerted particular influence on legal commentators.(50

Although the constitutional amending process has, over the past few years, been the subject of intense theorizing, there are surprisingly few good histories of the process and the twenty-seven amendments it has produced. Three particularly stand out. One is Alan Grimes's,(6) the second is by, Richard Bernstein with Jerome Agel,(7) and the third is by George Anastaplo.(8) The first and third volumes are chiefly directed to scholars, with Grimes focusing on congressional debates and the theme of democratic progress and Anastaplo chiefly focusing on issues of original intent. The second volume is written with a more popular audience in mind and is generally more suitable for such readers.(9)

David E. Kyvig is a professor of history at the University of Akron who has previously treated the amending process in valuable books on the amendments initiating and repealing national alcoholic prohibition (the Eighteenth and Twenty-first)(10) and in useful articles on the income tax amendment, the New Deal, and the balanced budget amendment.(11) With his latest book, Kyvig has added a volume which is, in most respects, superior to all three of the previous volumes on the amending process discussed above and others that have been written on the subject. Kyvig's title-explicit & Authentic Acts: Amending the U.S. Constitution, 1776-1995-as well as the size of his book Oust over 600 pages), the length of time he devoted to researching it,(12) and its publication by a scholarly press are all indications of its more comprehensive range and depth. While such characteristics make it ideal for scholars, such characteristics also make it unlikely that Kyvig's tome will displace Bernstein's and Agel's as the most accessible volume for general readers.

The publication of Kyvig's book was almost simultaneous with the appearance of my own Encyclopedia of Constitutional Amendments, Proposed Amendments, and Amending Issues, 1789-1995.(13) As one who has recently surveyed much of the same scholarly territory arid time period,(14) I believe I am in a. fairly good, if somewhat awkward.(15) position to assess it. Although I have written my volume as a series of alphabetical, entries rather than as historical narrative, it is fascinating to see, that both Kyvig's volume and my own live considerable attention to amendments that have been proposed and not ratified. My, volume aims for breadth. with separate entries on every identifiable subject of proposed amendments and with additional attention to proposals to rewrite the Constitution,(16) and other issues. Kyvig deals only in passing with scholarly attempts to rewrite the Constitution and focuses only on those unratified amending proposals that he thinks had widespread congressional support. However, those proposals that he does cover -- for example, the Corwin Amendment (an antebellum proposal that would have guaranteed states the right to maintain the institution of slavery), the child labor amendment. the Bricker amendment (limiting treaty-making powers), the Ludlow Amendment (requiring a referendum on war) and amendments designed to restore prayer in public schools, reverse the Supreme Court's apportionment decisions, give women equal rights, restrict or outlaw abortions, provide for representation for the District of Columbia, and guarantee a balanced federal budget -- he generally covers in considerable depth and with scholarly insight.

Apart from governmental studies, Kyvig's book and my own represent the first efforts, since historian Herman Ames's 1896 study of the 1,736 proposed amendments introduced in the nation's first one hundred years, to suggest that scholars might have as much to learn from amending failures as we do from amending successes.(17) In contrast to Bernstein and Agel's volume, which by highlighting some of the more unusual amending proposals may convey the message that the majority of unratified amendments are oddities,(18) both Kyvig's volume and my own show that many such proposals have reflected important political concerns and that their discussion...