Balkinization: Constitutional Legitimacy and the Right to Amend

Constitutional Legitimacy and the Right to Amend

Guest Blogger

For the Symposium on Richard Albert, Constitutional Amendments: Making, Breaking, and Changing Constitutions (Oxford University Press, 2019).

Julie Suk

Richard Albert begins with the premise that a constitution’s provision for its own change is among the most important features of constitution. He takes up the relationship of amendment rules to democratic theory, perhaps most saliently on Chapter 5, “The Architecture of Constitutional Amendment.” He writes, “Amendment is more than a structural feature of constitutions. It is a fundamental right that inheres in the nature of a constitution. The right to amend a constitution is part of a larger bundle of democratic rights.” The framing of amendment rules as democratic “rights” is interesting because most of the amendment rules discussed in the book – and certainly Article V of the U.S. Constitution – lack a language of rights.

But Albert acknowledges that there is a right to amend. Is it an individual right or a collective right? Is it a collective right retained by every democracy that constitutes itself by a written constitution? If it is a collective democratic right, the right would belong to the people who have constituted the polity created by the constitution and have agreed to be governed by it. If this explains why there is a right to amend a constitution, where does that leave the people who were not included in the constituent act that created the constitution, did not agree to be governed by it, but nevertheless were imagined by the constitution-makers as persons who would be subject to the constitution? In a constitution that purports to create a democracy, do such people also possess the right to amend the constitution? Are such people bound by the constitution’s provisions for amendment?

The last question begs the question of whether people who are imagined as subjects of a constitution but excluded from full citizenship status are bound by the constitution at all, let alone its rules for amendment. Both questions are central to understanding some of the most significant amendments that took place in the United States, namely, the Thirteenth, Fourteenth, Fifteenth, and Nineteenth Amendments. These amendments expanded who “we the people” are – beyond those intended to be included in “we the people” at the Founding. Moving beyond the particular language in the Preamble of the U.S. Constitution, these amendments expanded the boundaries of the political community and redefined membership in that political community, beyond those included by the constitution’s framers and adopters. These amendments changed who and what is constituted by the Constitution. Throughout the book, Albert uses these U.S. amendments – and similar ones from other constitutions, to illustrate his many points.

But Albert does not fully appreciate the distinctiveness of these amendments, which might disturb his account of the right to amend the constitution as part of the bundle of democratic rights. In some circumstances, Albert categorizes changes of this type as “dismemberments” – for instance, the Thirteenth Amendment’s abolition of slavery. The Nineteenth Amendment – securing women’s right to vote – is not a “dismemberment,” but an “elaborative” change. Albert’s taxonomy is driven by whether the amendment undermines a “core principle” of the Constitution or not, rather than by what it does to the boundaries of the political community.

Nonetheless, the boundary question is central to any understanding of an amendment rule’s democratic legitimacy which shapes its capacity to legitimize a constitution. In Chapter 1, “Why Amendment Rules?” Albert notes, “amendment rules hold special status: they legitimize higher and ordinary law as derived from the consent governed,” suggesting that the right to amend a constitution is crucial to legitimizing a constitution at the moment of its adoption. This makes sense: in making a constitution, it’s hard to imagine people consenting to be governed by a constitution whose very terms make it forever unchangeable. People do not build brick houses around themselves with no doors or tools for renovation. Without openness to future change, reasonable people would not opt into a constitution in the first place.

Assume that a constitution derives its legitimacy, at least in part, from the consent of its adopters, purporting to represent not only themselves and their contemporaries but also future generations of the polity who will be governed by this constitution. Under such conditions, are any democratic rights held by people who are expected to be governed by the Constitution but are excluded from the constituent rights-bearing people? The U.S. Constitution intended to govern slaves and counted them as three-fifths of persons for purposes of apportionment, while assuming their exclusion from the people who participated in democratic self-government through the political institutions created by the constituent act. Women were not explicitly left out by the text of the Constitution until the Fourteenth Amendment Section 2 described voters who counted for apportionment purposes as “male,” but the 1789 Constitution used the pronoun “he” to refer to the President of the United States and a member of Congress. The U.S. Constitution assumed that neither women nor persons of African ancestry were rights-bearers. The Thirteenth, Fourteenth, Fifteenth, and Nineteenth Amendments were enacted to change all this.

Were these amendments required to adhere to the procedures set out by the constitution itself for amendment? The amendment rule – and the constitution itself – derive their legitimacy from some account of democracy. It is only by promising the possibility of correcting flaws that a constitution gets people to consent to be governed by it. With this legitimation story in place, it’s plausible that a constitution legitimately binds even those who were not there, or represented, or included, or unfree at the Founding. Even a flawed constitution can legitimately demand compliance, because it contains mechanisms for correcting its flaws. Whether the flaws involve presidential succession or the exclusion of whole classes of persons from rights, all changes must be legitimized through the constitution’s formal amendment rule.

Yet, Albert hints at the inapplicability of the formal amendment rule to certain situations. He suggests that there are certain features of a constitution that one might presume to be unamendable, even if the constitution itself does not explicitly say so. The First Amendment of the U.S. Constitution might be one such example. Expanding Albert’s logic, perhaps there are some types of amendments that cannot be expected to comply with the formal amendment rule. The U.S. Constitution’s amendment rule, Article V, created high hurdles to constitutional change in an effort to entrench the exclusion of enslaved Africans from “we the people.” In addition to requiring two-thirds of both houses of Congress to adopt an amendment, and three-fourths of state legislatures to ratify it, Article V made the slave trade unamendable until 1808. These high thresholds intended to make it difficult to undo the compromises in the Constitution regarding the continuation of slavery. Put slightly differently, Article V is an amendment rule that affirmed the exclusion of African Americans from “we the people” and built barriers to reversing that exclusion. In so doing, Article V seems to fall short of Albert’s theory as to why an amendment rule has special status in the constitution, namely that it legitimizes higher and ordinary law as derived from the consent of the governed.

This could mean that enslaved persons and women were not bound by the U.S. Constitution to follow Article V to enact constitutional changes to abolish slavery, secure their equality under the law, and to get included as voting members of the political community. Bruce Ackerman and others have suggested that the Thirteenth, Fourteenth, and Fifteenth Amendments may not have met Article V’s requirements, but attained legitimacy through other means.

Similarly, it may mean that the Nineteenth Amendment and the Equal Rights Amendment can be legitimized through means other than Article V. Albert discusses the failure of the Equal Rights Amendment in the United States – a failure that ERA proponents are now attempting to rectify. The ERA, adopted by Congress in 1972, had a seven-year ratification deadline – what Richard calls a “deliberation ceiling.” Thirty-five states ratified the ERA within the first five years, and Congress then extended the deadline by three years. Nonetheless, the ERA did not achieve 38 ratifications, or three-fourths of the states as required by Article V, by the extended deadline in 1982. Presumed dead for thirty-five years, the Nevada legislature resurrected the ERA by voting to ratify it in 2017. Illinois followed in 2018, and Virginia in 2020. With 38 ratifications now completed, one house of Congress has voted to accept the ERA as part of the Constitution “whenever ratified” by 38 states, changing its earlier resolution from 1972 stating that the ERA would be valid “when ratified” “within seven years.”

Ratification deadlines were often imposed on all the constitutional amendments that have succeeded since Prohibition, with the notable exception of the Nineteenth Amendment. The Supreme Court held in Dillon v. Gloss and Coleman v. Miller that Article V authorized Congress to impose reasonable time limits on state ratification of constitutional amendments as part of its Article V authority to propose amendments to the states. Albert notes that such time limits “promote intra-generational contemporaneity between the separate approval votes for initiation and ratification. These two values – contemporaneity and representativeness – in turn combine to reinforce the sociological legitimacy of the resulting amendment.”

Confronting the current trajectory of the ERA, perhaps Albert’s approach to the “sociological legitimacy“ of amendments should be revisited in light of the distinctiveness of amendments that expand the boundaries of the political community. The formal amendment rule – Article V, including the judicially implied Article V power held by Congress to impose binding ratification deadlines – might not legitimately bind those who were excluded from the political community when the Constitution and the formal amendment rule were adopted. Furthermore, intra-generational contemporaneity is especially challenging for those who were excluded. It took 72 years for women to get the constitutional right vote without the right to vote in most states. They had to convince men that they had more to gain from women’s inclusion than from their continued exclusion. Enslaved people, too, had to convince slaveowners to cede power that they enjoyed. The difficult question, then, is: if not by the formal amendment rule or by a principle of contemporaneity, how can an amendment that expands the boundaries of a political community be legitimized?

Richard Albert’s Constitutional Amendments takes a giant leap in remedying the severe neglect of amendment rules in the study of constitutions. It triggers deep reflection on how constitutional change should be evaluated and legitimized for years to come.

Julie C. Suk is Professor of Sociology & Political Science, The Graduate Center, CUNY. You can reach her by e-mail at jsuk@gc.cuny.edu

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