Can this Constitution be Saved? The Need and Prospects of Constitutional Amendment in the United States

Guest Blogger

This post was prepared for a roundtable on Can this Constitution be Saved?, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law.

Caroline Fredrickson

Look at the name of this panel—it certainly seems to sum up the predicament the United States faces in this perilous moment. But amendments—and indeed, constitutions themselves—are vastly overrated as the “guardrails of democracy”?

Allow me to explore with you for a moment this seemingly ridiculous proposition. The central focus of our discussion today is whether the manifold problems we find in our Constitution can be addressed through an amendment or amendments, whatever they might be. While many critics of the United States Constitution have lamented the extreme difficulty of amending the document because of the hurdles posed by Article V’s rigorous requirements, Sandy Levinson has been prominent and prolific in highlighting how too many scholars today sing the praises of a document that is essentially unfixable and calling into question our almost religious veneration for it.

Article V of the Constitution lays out two mechanisms for amendment. The first, via a constitutional convention, has never been used. This provision empowers two-thirds of the state legislatures to petition Congress to call a convention. The second, through adoption by each house of Congress on a two-thirds vote and ratification by three-fourths of the states, is the only one that has had success. But obviously, with the meager number of amendments adopted—with none at all adopted since 1972—the Constitution perhaps even exceeds the Framers’ hopes of limiting fundamental alterations. As Wilfred Codrington, one of our panelists today, and John Kowal note in their recent book, The People’s Constitution, “Out of more than twelve thousand additions and revisions put forward since the Constitution was adopted, Congress has managed to send just thirty-three amendments to the states for their consideration.”[1]

Codrington and Kowal detail in an inspiring way the stories that animated the amendment process, providing a lively and accessible history of how the U.S. Constitution has been made “more democratic, more inclusive, and more responsive to the needs of a changing country” as a result of changes made through amendment.[2] After a helpful description of the debates in Philadelphia, the authors explain how and why the Framers created an extraordinarily complex and rigorous system for pursuing amendments, partly to prevent the abolition of slavery as well as to protect the small-state advantage in the Senate and limit the power of the central government.

But Kowal and Codrington don’t leave us with only a pessimistic view, even while they recognize that enormous challenge posed by Article V. For they seek to “tell[] the story of how the American people took an imperfect Constitution—the product of compromises and an artifact of its time—and, despite all obstacles, made it more democratic, more inclusive, and more responsive to the needs of a changing country through the constitutional amendment process.”[3]

Despite these successes, we all recognize that our Constitution is still problematic and see no easy prospect for fixing its myriad flaws. Moreover, we might need to consider that a constitution may be an inadequate mechanism to confront the growing autocratic tendencies of certain elements of American society—and so amending the Constitution may not solve the problems even if we could adopt some significant ones. Even the best constitutional design may not be able to prevent tyranny if powerful malefactors desire it. Scholars, such as Steven Levitsky, another member of today’s panel, masterfully demonstrates in his book How Democracies Die how illiberal actors undermine democracies while technically adhering to their constitutional system.

Most scholarly work and commentary on illiberal democracy start by stating that there is an international backlash to democracy and that the principles of the rule of law have been ignored. But constitutions, from Russia to Hungary, continue to define the respective country as a rule-of-law state (Rechtsstaat). These countries outwardly respect rule of law in political declarations and in terms of their formal requirements, and a veneer of legalism is important for their governmental operations and legitimation. At the level of the constitution and even in terms of judicial and administrative procedures, these countries seem manifestly to support rule of law (In fact, the Russian constitution was modeled on the U.S. Constitution explicitly.) Likewise, they ensure security of property, which is a central element of the rule of law. Of course, it is important in these systems to enshrine private property because property acquired by government cronies must be protected and foreign investors too need constitutional and practical guarantees. First, of course, however, the cronies have to take possession: in Hungary, Russia, and elsewhere, the regimes divvied up formerly nationalized property—or sometimes expropriated it from political enemies using legal processes—and handed it out to the allied oligarchs. And all this has seemed to comport with rule of law and the constitution. Certainly, it seems related to Trump’s successful efforts to get a bargain-basement lease for the Old Post Office Building for a Trump hotel—which he has now sold for a huge profit.

So does a constitution matter? András Sajó, a commentator who has been a close observer of his native Hungary, is a skeptic of whether a constitution can do much to prevent determined efforts to subvert democracy. The central piece of the legal system, the constitution, does not necessarily need to be changed to allow an autocrat to create a successful illiberal or even authoritarian regime. Indeed, a constitution can often serve as a pretext for aggregating power since the text of the pre-existing liberal constitution may serve the autocrat, with some creative interpretation, as a façade of rule of law.

At face value, Hungary’s constitution adopted in 2011 did not raise flags, and preserved all the democratic institutions consistent with E.U. principles at the time. Yet, through the very mechanisms of the constitution, Hungary’s leader Viktor Orbán was able to reshape the government and ultimately society to allow him to retain and consolidate power. Because the constitution established a strong executive branch, he was able to further consolidate his personalistic rule. This “unitary executive” has enabled him, as it did Putin, to establish social, cultural and economic dependencies – Sajó describes it as neo-feudal in the sense that Orbán was able to make many business interests dependent on the government for grants of favor.[4] Instead of nationalizing industry, he was able to ensure key government protections for certain businesses, especially in media, run by allies, ensuring benefits for the inner circle and cementing their support. This approach is similar to how Putin has operated in Russia with the oligarchs who are entirely dependent on him to retain their riches—and their freedom. The emerging social relations are reflected in and enabled by public law. Though illiberal leaders usually game elections, most of them enjoy majority support, enabling them to state truthfully that the illiberalism of their regimes is not imposed on society, but is chosen by it. This genuine sentiment, together with electoral and media manipulation, makes it possible to sustain their illiberal personalistic regime through formally democratic and constitutional processes.

But even this analysis suggests that the constitution plays at least a symbolic role. But does it really? Even though the Hungarians enacted a new constitution, most of Orbán’s efforts to consolidate and perpetuate his power could have been achieved without it. Perhaps no law will constrain power where those in control of power write the law. Sajó argues that ultimately the real constraint is the personnel.[5] What tilted the regime towards illiberalism in Hungary was the change in the personnel of the existing institutions.[6] Change in the personnel of the public administration, he says, seems to be the royal road to the creation of an illiberal regime.[7] Pertinent to the U.S. situation, changes to the Constitutional Court in Hungary have been carried out without a constitutional amendment and have made the Constitutional Court much more beholden to Orbán and the Fidesz party. We in the United States are now only too aware of how changes in personnel in the court system can play key roles in the transition from liberal democracy to illiberal “democracy”, without a requirement of a formal constitutional amendment to codify such changes. Once loyalists are in place it makes little difference that the institutions had most, or all standard guarantees of independence.

In the American system, we all know that our democracy might have hung in the balance if a few judges, election officials, and partisans had not bucked the strong pressure from Donald Trump to “find me the votes” in the 2020 election despite his obvious and significant loss. But can we depend on them going forward? Will they even be in office?

Caroline Fredrickson is Distinguished Visiting Professor at Georgetown Law. You can contact her at caroline.fredrickson@georgetown.edu.