How to violate the Constitution without really trying: lessons from the repeal of prohibition to the Balanced Budget Amendment.

• Author: Tribe, Laurence
• Position: Constitutional Stupidities: A Symposium

Shortly before the proposed Balanced Budget Amendment went down to defeat by a single vote in March 1995,(1) Kansas Senator Nancy Kassebaum explained her reason for dropping her previous opposition to that much-debated but still-undelivered change in the United States Constitution.(2) It wasn't that the Senator had overcome her doubts about the ability of the Balanced Budget Amendment actually to curb the evils of an ever-increasing deficit. No, the reason was more subtle: "It may be like the Prohibition Amendment," she explained. "We may just have to get it out of our system." It was true that "[p]rohibition didn't stop drinking," but then it didn't really wreck, or even permanently mar, the Constitution either.(3) After all, we repealed the Eighteenth Amendment when we ratified the Twenty-first, a little over a decade later.

The Eighteenth Amendment, it should be said, is nearly everybody's prime example of a constitutionally dumb idea. Dean John Hart Ely, for instance, uses it as Exhibit A in his case against constitutionalizing social or economic policies.(4) To my knowledge, however, few people have focused on how silly the Prohibition Repeal Amendment--the Twenty-First--was. Not that the idea it represented was silly. It wasn't. What could be sounder then getting rid of the Prohibition Amendment? The problem wasn't the idea, but its implementation.

Before getting to the punchline--all right, what was so dumb about the way the Twenty-First Amendment went about repealing the Eighteenth?--let me say why the point seems worth pursuing. Lots of ideas make constitutional sense in the abstract. Protecting future generations from our own short-sighted proclivities to heap on a mountain of debt through a sort of taxation without representation--that's actually a pretty good idea.(5) But between the rhetoric and the reality, as they say, falls the shadow. Otherwise put, in constitutional matters, as in others, the devil is in the details. So one must look closely at the details before signing on to the whole package.

Consider, then, the details of the Twenty-First Amendment. Its opening section (Section 1) repealed the Eighteenth Amendment. So far so good. Its closing section (Section 3) set a seven-year time limit on ratification. Again, a fine idea. In fact, the practice of setting such limits in advance actually dated back to the Eighteenth Amendment (before whose advent Congress had neglected to set any time limits at all, leading to such peculiar episodes as the ratification of the Twenty-Seventh Amendment over two centuries after its proposal to the States(6)). But consider Section 2, the...