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[Congressional Record Volume 141, Number 70 (Monday, May 1, 1995)]
[Senate]
[Pages S5924-S5926]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

                             AMENDMENT TIME

 Mr. SIMON. Mr. President, recently, I came across an article 
by John G. Kester, a Washington attorney. It is a commonsense article 
about our Constitution and amending the Constitution.
  I have great reverence for the Constitution, but I also know that the 
Constitution was written to meet problems that existed more than two 
centuries ago.
  On the matter of a balanced budget amendment, the author writes:

       Congress, for instance, has demonstrated for decades that 
     institutionally it cannot muster the discipline to restrain 
     excessive spending. Lately, ashamed to speak the name, it 
     even pretends that most expenditures are something else, 
     labeling them entitlements. Presidents no longer refuse to 
     spend excessive appropriations. A balanced-budget amendment 
     may be a challenge to express in words, but it is not 
     impossible, and it is certainly not, as Senator Chris Dodd 
     asserts, very irresponsible. It imposes a new constitutional 
     obligation on Congress without micromanaging the policy 
     choices for achieving it. It is not likely to make the 
     situation worse, even if courts will be invited to construe 
     it. And if experience suggests improvements, those can be 
     added.

  John Kester brings both scholarship and common sense to this 
discussion.
  At this point, I ask that his article be printed in the Record.
  The article follows:
                  [From the Washingtonian, March 1995]

                             Amendment Time

                          (By John G. Kester)

       If the people really are serious about taking back their 
     government, they can start by amending the Constitution. 
     There have been a few lurches in that direction--like the 
     balanced-budget amendment that was part of the Republicans' 
     Contract With America, and some talk about amendments that 
     would ban unfunded federal mandates or set uniform term 
     limits for Congress.
       That's a beginning, but a modest one. The current state 
     legislatures are in a receptive mood. If Speaker Gingrich and 
     the new tribunes of the people really want permanent change 
     in the way Washington and its federal judges run the country, 
     then this spring constitutional amendments ought to be 
     blossoming like azaleas.
       But don't count on it. The op-ed pages already have begun 
     to darken with warnings from learned scholars, politicians, 
     and columnists that to lay hands on the Constitution would be 
     impractical, even dangerous, downright unpatriotic. The 
     Constitution, they suggest, is so nearly perfect that to 
     revise it would be like altering the formula of mother's 
     milk--nothing else could be healthful, and any variation 
     might make you sick.
       Is the Constitution too flawless and sacred a document to 
     violate with alterations? Most of the Cassandras stop short 
     of suggesting it was divinely inspired, but even that has 
     been claimed. The less devout shake their heads and say that 
     adding amendments just isn't practical--that it can never 
     work, that even figuring out the right words is too hard, 
     that the only way to fit the Constitution to the times is to 
     leave all corrections to the courts.
       Even aesthetics is invoked. To add amendments, it has been 
     said, would make our classically crisp federal Constitution 
     resemble those ungainly creations of the 50 states. State 
     constitutions are longer, often loaded with dozens of 
     amendments, and deal with such mundane affairs as off-street 
     parking in Baltimore (Maryland Constitution Article XI-C) or 
     preserving natural oyster beds (Virginia Constitution Article 
     XI, section 3).
       But no one has shown that state constitutions do not work--
     or, indeed, that lengthy and detailed constitutions don't 
     work better because they leave less room for doubt. 
     Automobile engines, reliably move your car without being 
     engineered to win beauty contests. If the purpose of the 
     Constitution is to model 18th-century elegance, perhaps the 
     parchment should be moved from the Archives to the National 
     Gallery.
       The Constitution exists to be applied, not adored. A 
     politically rare opportunity will be lost if the hand-
     wringing about constitutional purity succeeds in scaring off 
     reformers. Of course not every popular idea belongs in the 
     Constitution, and not every proposed policy change would be a 
     good one. But (dare one say if?) there is room for 
     improvement.
       No one should take all the warnings against amendments 
     seriously. The authors of the Constitution certainly wouldn't 
     have.
       The men who spent the summer of 1787 holding secret 
     meetings in a room in Philadelphia did not think they were 
     Moses, chiseling stones with dictation from a Higher Source. 
     Their un-air-conditioned days passed in disagreements, 
     endless compromises, and perspiration. The product was simply 
     a well-organized document that most could accept, although 
     with varying degrees of reluctance.
       The 13-state ratification process that followed was even 
     more contentious, and nearly failed. To obtain agreement from 
     the minimum nine states took nine months, and the votes in 
     key ratifying conventions were too close for comfort: 
     Virginia 89 to 79, Massachusetts 187 to 168, New York 30 to 
     27. No one arguing for ratification ever gave a speech 
     claiming the document was perfect; the authors more humbly 
     expressed hope and said they had done the best they could.
       All recognized that, as Virginia's George Mason observed at 
     the beginning, ``The plan now to be formed will certainly be 
     defective.'' (So defective he finally concluded, particularly 
     in its treatment of slavery, that in the end he refused to 
     sign it.) For that reason, the Constitution was written with 
     one article of its seven devoted entirely to 
     [[Page S5925]] the subject of how to amend it. This was done, 
     acknowledged Charles Pickney of South Carolina, because ``it 
     is difficult to form a Government so perfect as to render 
     alterations unnecessary.'' Amendments, James Iredall told the 
     reluctant North Carolina ratifying convention, would provide 
     its own fallibility.'' Even James Madison, called the Father 
     of the Constitution, anticipated that his offspring would 
     need to grow. ``[U]seful alterations,'' he predicted, ``will 
     be suggested by experience.''
       Alterations did come, but mostly not in the way Madison 
     anticipated. They have come usually by courts announcing, and 
     sometimes revising, their conclusions about what words of the 
     Constitution mean.
       Anyone who says that amending the Constitution is in 
     principle a bad idea is really selling a notion about where 
     to assign power. For a long time now the only players in the 
     constitution-altering game have been judges. They have 
     secured their position by taking open-ended phrases like 
     ``due process of law'' or ``the freedom of 
     speech'' or ``Commerce . . . among the several States'' and 
     announcing that these mean one thing, and then another, and 
     then another. Many of their pronouncements, which take the 
     form of decisions in lawsuits, seem logical correct. Others 
     occasionally appear daffy. The secret was spilled when 
     Charles Evans Hughes, before he became Chief Justice, 
     explained in a speech: ``The Constitution is what the judges 
     say it is.''
       That is true, however, only if the Supreme Court's view is 
     not superseded by a higher authority--the amending process. 
     It makes no sense to cut off debate on any subject by saying, 
     ``The Supreme Court has spoken.'' The Supreme Court speaks 
     all the time. But this is a government, not the army. The 
     Supreme Court may speak--but the Constitution intends that if 
     the people care enough, the option of amendments gives them 
     the last word.
       Adding a new provision to the Constitution to reject a 
     court decision--as the Eleventh Amendment did in 1798--can at 
     least slow a Supreme Court down. Because the Constitution 
     came from ``We the People,'' why should not the people 
     through their elected representatives participate more often 
     in the process of constitutional change? Especially when the 
     document itself--which does not even mention interpretation 
     by judges, much less give judges the last word--spells out a 
     precise and simple amending procedure for the people to use? 
     Why shouldn't there be amendments to make corrections when 
     the Supreme Court gets it wrong--or, no less appropriately, 
     when the Court's reading of an old provision may seem 
     accurate, but the people on reflection decide that they no 
     longer want such a rule? It is amazing that every time the 
     Supreme Court issues some new constitutional interpretation, 
     provoking a storm of public outrage--then nothing happens.
       Correcting the Supreme Court is not even the most crucial 
     issue. New needs develop that don't show up in Supreme Court 
     decisions. Why shouldn't the people adopt constitutional 
     solutions for perennial problems--for instance, 
     uncontrollable extravagance by Congress, or federal power-
     creep, or war powers of the president--that seldom, if ever, 
     come before the courts? Even for those who believe that the 
     Supreme Court's job is to ``keep the Constitution in tune 
     with the times,'' it expects too much of the Court to act as 
     the only corrective balance wheel of the government.
       Power lies with whoever can change the Constitution. Court 
     decisions can be overruled by amendments, and when there is 
     contrary consensus, they ought to be. More important, 
     constitutional updating is not the assignment of the Supreme 
     Court, but rather the duty of Congress and the states. 
     Constant abdication of the amending power was never expected, 
     and in a representative government makes no sense.
       The Constitution does not come to us, as foes of amendments 
     imply, in an undefiled condition. True, there have been few 
     formal amendments over 200 years, but there has been plenty 
     of change in the Constitution. In fact, although custom 
     speaks of ``the Constitution'' as if there is only one, the 
     reality is that this country has had several. We live in 1995 
     under the fourth constitution of the United States.
       The first constitution, adopted in 1778 by 11 sovereign 
     governments, resembled a treaty, and appropriately was called 
     Articles of Confederation. It created a loose alliance of 
     independent states--that is, countries--designed mainly to 
     pursue a united front in a war. The national organization's 
     few activities operated by unanimous consent, which meant it 
     operated very little. Each of the 13 governments remained 
     independent to set its own tariffs, raise its own taxes and 
     armies, print its own money, and govern its internal affairs. 
     Still, the Articles of Confederation were not a total 
     failure. After the British decided to cut their losses and 
     quit, the main complaint about life under the Articles was 
     that state tariffs and trade barriers in independent 
     economies were strangling each other. A NAFTA of its time was 
     needed.
       The congress created by the Articles authorized delegates 
     to meet in Philadelphia in 1787 to propose amendments to the 
     Articles of Confederation. The first thing the delegates did 
     was exceed their authority. They began by junking the 
     Articles and starting over to design a national government 
     that would exist in addition to those of the states.
       The result was the constitution of 1787, which became 
     operational in 1789. The purpose of the document was not to 
     provide a code of laws, secure human rights, or solve all 
     problems, but rather to set up--``constitute''--a new 
     government. It contained a handful of specific prohibitions 
     on Congress (like taxing exports) and the states (like 
     levying tariffs). But mostly it outlined an organization 
     chart and allocated powers between the national government 
     and states, and among the three branches of the national 
     government.
       Two subjects consume most of the Constitution. The first 
     was, what powers would the national government have? All 
     agreed that, quite unlike the states. It should not have 
     general legislative powers, but instead would be allowed to 
     act only on topics the Constitution assigned to it. Just to 
     nail that down, 10 amendments were promptly proposed and 
     adopted, called the Bill of Rights. These were not really a 
     list of rights of individuals (they left the power of state 
     governments unrestrained), but rather they were some 
     important specific examples of what the federal government 
     had not been empowered to do--like abridge the freedom of the 
     press, or quarter soldiers in people's houses. The 
     enumeration ended up with two directions on interpretation. 
     The Ninth Amendment reminded that just because the federal 
     government could not do these things did not imply that it 
     was authorized to do others. The Tenth Amendment then 
     reiterated that unless powers were delegated by the 
     Constitution to the federal government, or prohibited to the 
     states, they all remained with the States or the people.
       The other focus at Philadelphia was the internal 
     arrangements of the national government itself--such issues 
     as how Congress would be formed and chosen (a Senate chosen 
     by states and a House by people), the addition of a national 
     executive, and how the limited national powers would be 
     divided among the Congress, the President, and the 
     judiciary--which Hamilton called ``the least dangerous 
     branch.''
       The Constitution of 1787, typical of many hard-negotiated 
     agreements, swept under the rug two potentially contentious 
     issues that everyone hoped might go away; first, whether 
     states that entered the new union could withdraw if they did 
     not like it; and second, slavery, which the framers chose not 
     to mention by name and not to deal with except to give a 20-
     year protection to the slave trade and require the return of 
     fugitives slaves.
       Unfortunately, over time each of those unresolved issues 
     played into the other, and finally with the election by a 
     minority of an extremist president in 1860, the 1787 
     structure dissolved into a contest of arms. Whether states 
     legally could withdraw--some like Massachusetts and South 
     Carolina had claimed the right for years--was a question 
     incapable of any sure answer from logic, history, or reading 
     the text of the Constitution. And it was never submitted to 
     the Supreme Court. Instead, disproving once again the canard 
     that wars never settle anything, it was decisively resolved 
     by soldiers killing each other.
       The Civil War led to the third constitution of the United 
     States. Although this constitution wears the more modest 
     label of the Fourteenth Amendment, it turned out to be a 
     whole new arrangement of government. Adopted in 1868 with the 
     forced consent of defeated Southern states, the Fourteenth 
     Amendment in ringing and undefined words forbade any state to 
     deny equal protection of the laws, or to deprive anyone of 
     life, liberty, or property without due process of law. In the 
     end those ringing and undefined words drastically revised the 
     roles of the states and the federal courts.
       For the rest of the 19th century and into the next, this 
     new provision was transformed by the Supreme Court into a 
     shield for businesses from state regulation. With each decade 
     the sweep of the Fourteenth Amendment got bigger and bigger. 
     It was read to forbid states from, for example, requiring 
     attendance at public schools, or limiting maximum hours of 
     work. It became a charter for judges, citing only the 
     Constitution's phrase ``due process,'' to invalidate whatever 
     laws they believed unwise.
       Still, the limited scope of activities for the national 
     Congress that had been enumerated and confined in 1787 tended 
     to remain. A few controversies had arisen early--such as 
     establishing the Bank of the United States (opposed on 
     constitutional grounds by Madison), whether the Constitution 
     authorized purchasing Louisiana, and Monroe's plans for 
     federal road-building. But in spite of occasional pushing of 
     the envelope of Congress's spending power, the government in 
     Washington generally left it to the states to regulate most 
     matters affecting people's daily lives, and did not find 
     reason to read too expansively its powers listed in the 1787 
     Constitution.
       In the 1930s, the country was hit by the Depression and the 
     national government became much more radical and active. The 
     Supreme Court promptly reminded Congress of its limited 
     legislative role, holding that one New Deal law after another 
     exceeded its powers to tax, spend, or regulate commerce.
       Then all of that changed. The Roosevelt administration 
     decided to deal with the Constitution's restrictions not by 
     amendment, but as a personnel matter. Franklin Roosevelt 
     first threatened to expand the Supreme Court from nine judges 
     to as many as fifteen, then found he did not need to. From 
     1937 to 1941 he appointed seven new justices, all of them 
     devoted New Dealers. Their opinions held that, for example. 
     Congress's power 
     [[Page S5926]] to regulate interstate commerce was so far-
     reaching that it could prohibit a farmer from growing a patch 
     of wheat for his own bread. The limitations on the powers of 
     the federal government suddenly seemed to evaporate.
       A fourth constitution thus emerged when the Supreme Court 
     by the end of the 1930s brushed aside the doctrine of 
     enumerated powers, which had limited Congress by requiring 
     reasonably clear grants of authority in the Constitution. The 
     Court about the same time also renounced ``due process'' as a 
     restriction on state or federal legislation. Then, having 
     demolished all those barriers to regulation, the Court for 
     the rest of the 20th century began erecting hurdles of a 
     different kind by interpreting the Bill of Rights more 
     expansively and reading the Fourteenth Amendment to limit the 
     states in novel ways. It announced that the 1868 Fourteenth 
     Amendment without saying so had stripped the states of 
     virtually all the powers that the 1791 Bill of Rights had 
     said were outside the charter of the federal government. It 
     also held suddenly in 1964 that the Fourteenth Amendment had 
     made unconstitutional all houses of state legislatures that, 
     like the U.S. Senate, were not based on equal population. By 
     the end of the century the Supreme Court had begun invoking 
     ``due process'' again, but this time to invalidate laws it 
     concluded unduly limited personal liberty.

                           *   *   *   *   *

       Most real political revolutions have left their lasting 
     traces on the Constitution. The Republicans after the Civil 
     War secured the three amendments that ultimately ended racial 
     inequality under law, and turned out to do far more. The pre-
     World-War-I Progressives, while they were democratizing state 
     governments, also switched control of the Senate to the 
     people, gave the federal government the tax base to grow, and 
     soon afterward helped secure the vote for women. The New Deal 
     even brought new access to liquor while rewriting the 
     Constitution by restaffing the Supreme Court.
       The time will never be better to update a marvelous and 
     rightly cherished document, perhaps to correct some mistakes 
     in how it has been interpreted, but most important to 
     readjust its balances to fit the needs of a new century. Its 
     authors would have expected no less.
     

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