Consititutional Amendments: Dangerous Threat or Democracy in Action?

I. INTRODUCTION1 Since the Republicans swept back into control of Congress in 1994, the issue of constitutional amendments has received more attention from the American people than it has in some time. Proposals for a Balanced Budget Amendment2 and a Flag Protection Amendment,3 in particular, have caused many Americans and, thus, their representatives in Congress, to ponder not only the general wisdom of constitutional amendments, but also the appropriate time and place for such amendments. In line with the recent spate of proposed amendments,4 a proposal for "Guidelines for Constitutional Amendment" ("the Guidelines") was recently offered for consideration.5 The authors of these Guidelines maintain that constitutional amendments should be reserved only for "great and extraordinary occasions," a sentiment that is reflected in the title of their publication submitting the Guidelines, Great and Extraordinary Occasions: Developing Guidelines for Constitutional Change.6 I argue here, however, that constitutional change is not a danger to be feared, but rather a tool for democratic action-a tool thought vital by the Founders themselves.7 How, then, might one go about determining what ought to be the appropriate practice with regard to constitutional amendments? Surely the most sensible approach is to begin with the thoughts of the Framers themselves. II. INTENT OF THE FRAMERS AND THE HISTORY OF CONSTITUTIONAL AMENDMENTS When the Constitution was first proposed, many states were reluctant to ratify it until further amendments were added to the draft that had emerged from the Constitutional Convention in Philadelphia.8 Recognizing that if each state proposed amendments it might be years before all the states could agree on what those amendments might be, and recognizing further the need to establish a national government as quickly as possible, the proponents of the Constitution assured the American people that it would be better to pass amendments after ratification, rather than before.9 Several critics of the proposed Constitution argued that the proponents of the Constitution had first created an amendment procedure that was virtually impossible to accomplish, and then sought to defer the amendments sought by the Constitution's opponents. These critics claimed that the real goal of the Constitution's supporters was to foist a noxious artistocracy on the American people-one that could never be eliminated because the difficulty of amendment would entrench it in power.10 In contrast, those who sought to defend the Constitution argued that amendments could be achieved, that this eliminated the danger of monarchy or aristocracy,11 and that amendments would be appropriate whenever the need became evident to make the Constitution more "perfect"12 or even less "[i] nconvenient."13 When the first ten Amendments, now known as the Bill of Rights, were passed a scant two years after the adoption of the Constitution,14 it demonstrated that amendments were possible. Since then, however, it has been difficult to achieve constitutional amendments: only seventeen have been passed since 1791.15 The first two of these seventeen were ratified relatively soon after the first ten, in the late eighteenth and early nineteenth centuries, respectively.16 The aftermath of the Civil war resulted in passage of the next three Amendments: one prohibiting slavery,17 another guaranteeing the freedmen the right to vote,18 and a third restricting the states from interfering with due process, the privileges and immunities of United States citizens, or the equal protection of the laws.19 This last Amendment, as interpreted, has fundamentally altered the balance struck by the original document in the allocation of power between the state and federal governments.20 Since 1971, however, no new amendment proposals have succeeded, although the nation has been through some of the most profound economic and cultural changes in its history. …