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.