Tuesday, January 24, 2023

Why Amendment "Difficulty" Matters

Stephen Griffin

For the Balkinization 20th Anniversary Symposium

My commemorative post to Balkinization is from my current project developing a theory of constitutional change for the U.S. case.  This part of the project discusses why the “difficulty” of constitutional amendment under Article V matters.  This topic is highly relevant to the “state of constitutional theory” because although important, it operates largely as an out of sight assumption.  But if it is a hidden assumption, it is an issue that makes a difference.  For example, in my article “Optimistic Originalism and the Reconstruction Amendments,” I wrote: “Originalist adherence to Article V as the sole legitimate means of constitutional change is a red thread that runs through and unifies what are otherwise quite disparate versions of the theory.”  Nonoriginalists or living constitutionalists have their own take on Article V, which is that change is simply “impossible.”  Historians seem to agree.  In a recent issue of The New Yorker, Jill Lepore wrote, “With the failure of the E.R.A., the Constitution became effectively unamendable.”

 That may be conventional wisdom, but there is actually a debate on the subject.  In defending the feasibility of Article V, some scholars point not only to the Reconstruction amendments, but to the raft of amendments passed in the Progressive era and later successful efforts in the 1950s and 1960s.  These episodes are offered as proof that change through Article V, while certainly not easy, is not impossible.  Scholars have also debated how to quantify the difficulty of the U.S. amendment process relative to other countries (and whether this is worth knowing!).

 Often left in the rearview mirror is why this matters.  This question spurs my attempt to turn the debate in another direction.  I contend that amendment difficulty matters to the legitimacy of the modern American state.  Indeed, when viewed from the perspective of constitutional design, American constitutionalism can be regarded as a sort of tragedy.  This is because the relative lack of amendments stems not so much from the cumbersome mechanics of Article V, but from a conscious political choice to avoid amendments unless absolutely necessary, a choice first made early in American history and remade again and again.  It is a choice that made a good deal of sense in terms of preserving the stability of the new republic.  In fact, many think it still makes sense (Lepore adverts to this).  I argue, however, that when this choice was brought forward into the very different environment of the twentieth century, it resulted in a rupture in the felt continuity of American constitutionalism that has never been successfully healed.

 In outlining this argument, I introduce a qualitative measure of amendment difficulty that flows from my theory of constitutional change as state building.  Inquiring into the phenomenon of amendment avoidance allows us to draw valuable connections between constitutional change in the twentieth century and the rise of the conservative movement after World War II, a movement that continues to exert a strong influence on American politics.  Not pursuing amendments during the New Deal, for example, had a negative effect on the subsequent legitimacy of the administrative state.  This legitimacy deficit has led not only to calls for its demolition but, just recently, to put key doctrines supporting the administrative state in jeopardy before the Supreme Court.  I suggest we look at this chain of events with fresh eyes, if only to awaken ourselves to the possibility that the American practice of amendment avoidance has substantial costs as well as benefits.

 I begin with the question of how the difficulty of amendment should be conceptualized.  This is often treated purely as a matter of the requirements imposed by Article V and the number of amendments – twenty-seven since 1789, or, if you like, just fifteen since the early republic.  Article V not only imposes supermajority requirements but imposes them at two levels – Congress and state legislatures (or conventions) – both of which must be satisfied.  Most amendments sent to the states by Congress have been approved.  This suggests the supermajority requirement in Congress is the key to the low rate of amendment.  I contend that the desire for constitutional stability matters as well.  Not long after its adoption, the Constitution became a focus for patriotism, venerated as the founding stone of the republic.  It would be a mistake to think it always held this position throughout the remainder of American history.  For one thing, this would pass by the lessons of the Civil War too quickly.  But the high degree of veneration remains relevant because it is connected in an important way with the logic of two-party competition.  Together, these factors created the phenomenon of amendment avoidance, something which restricted severely any reasonable efforts to keep the Constitution up to date.

 As a brief illustration, consider the antebellum debate over internal improvements.  This conflict involved proposals to assert federal power to construct roads, canals, and other infrastructure of arguable benefit to the nation.  Yet proponents of these improvements could not evade the charge, continually pressed by fearful opponents, that they were expanding federal power beyond that permitted by the Constitution.  Amending the Constitution would, of course, solve this difficulty.  But the difficulties with this option ran deep.  Asking for an amendment in effect concedes to the opposition that the proposal is unconstitutional.  In addition, consideration of such an amendment might bring into question other assertions of federal power that your faction or party supports.  This raises the potential of endlessly recycling disputes such as the constitutionality of a national bank.

Historian Michael Vorenberg argues that prior to the Civil War, Americans did not regard Article V as offering a reasonable way to handle their urgent constitutional disputes.  They saw the Constitution as appropriately static, in keeping with the argument James Madison made in The Federalist No. 49.  The controversy over slavery supports this point as well. The political stresses caused by the nullification crisis in the 1830s or Dred Scott in the 1850s did not cause Americans to turn to amendments as solutions except just before the Civil War broke out. 

The phenomenon of amendment avoidance cuts across the standard debate over amendment difficulty.  Arguments asserting the general difficulty or, even, “impossibility” of amendment are questionable given the ratification of twenty-seven amendments (or fifteen since the founding period), including some that everyone agrees are of great importance and a few that were ratified quickly.  In this light, the inquiry into amendment difficulty needs to be recast.

The “difficulty” of amendment that is relevant to my argument is the consequence of a conflict of values – between specifying limitations on government that are enforceable and kept up to date while also keeping the Constitution clear of quotidian political entanglements in the service of stability.  Understood in this way, the contention that the Constitution is too “difficult” to formally change is not chiefly about mechanics or observing the number or frequency of amendments, but a complex historical and normative judgment about the relevance of the text to ongoing governance.  Such an inquiry involves establishing a historical baseline composed of the norms and institutions of the eighteenth-century state and then comparing it with the norms and institutions needed to drive forward the far more complex national state of the twentieth and twenty-first centuries.

Amendment difficulty is thus a relative judgment about the adequacy of the existing text to ground the operation of the contemporary American state rather than a claim about the unchanging difficulty of jumping through the hoops established by Article V.  It is more a question of the benefits and costs of deliberate amendment avoidance than amendment “difficulty.”

During the long interregnum between the Twelfth Amendment and the Thirteenth, there were several disputes that illustrate the logic of amendment avoidance.  As with the debate over internal improvements, in debates over the constitutionality of territorial expansion, states’ rights, and the status of slavery nineteenth-century Americans came to rely on non-amendment or “informal” means to make (or at least advocate, in the case of proposals not adopted) significant legal changes to the Constitution.  Why?  As perhaps the most important basis for political identity, the Constitution came to have a near-sacrosanct character.  Proponents of changes in government power were therefore reluctant to concede that formally changing the Constitution was necessary.  After all, advocating a change to the Constitution implied that it was defective, a position that was almost self-refuting from a political point of view.

Nonetheless, advocates of using federal constitutional power in an active way sometimes controlled the government and so did change the scope of federal constitutional power – but without using amendments.  This can leave us at sea if we attempt to track the evolution of constitutional power in antebellum America (and afterwards).  Tracking constitutional change matters because the law matters.  One must keep in mind both the original commitment to a supreme law governing politics and the later decision to, in effect, push much constitutional change, legal change, off-text.  Without a reliable way to track non-amendment constitutional change, we would not know the content of the supreme law of the land.  Over time, the literal text would tell us less and less.

The logic of change I have described was so taken for granted by Americans that it was not until well into the Civil War that Republicans realized that only a formal constitutional amendment would guarantee the legal death of slavery.  Republicans almost universally believed, for example, that the Constitution did not provide the federal government with the power to abolish slavery within an existing state.  In his wonderful account historian James Oakes describes the pervasive “federal consensus” to the effect “that the Constitution put slavery in the states beyond the reach of federal power.”  No specific clause of the Constitution actually stated this, of course, “yet no other constitutional precept so profoundly shaped the contours of antislavery politics in the years between the founding of the nation and the Civil War.”  Slavery was grounded firmly in law and hence was not so easy to abolish.

Despite this growing realization of the legal “stickiness” of slavery, Republicans still had doubts about using the Article V amendment process.  Here Oakes’s account dovetails with Vorenberg’s.  Reverence for the Constitution made amendment, the one option that was certain to end slavery forever, seem too difficult.  Republicans gradually came to the realization that the fault lay with the Constitution itself.  It may appear that Republicans were caught in a tangled net of principled distinctions of their own devising.  The point I wish to press is that we would find similar fine distinctions being made with respect to any of the significant constitutional controversies in American history.  These distinctions are based on principles like the federal consensus that are part of the law of the Constitution.  Regardless of whether they were literally ensconced in the constitutional text or not, these principles were regarded by contemporaries as the supreme law of the land.  This meant that proposing changes to those principles required an amendment to the Constitution or its legal equivalent.  Whether the change ultimately happened through Article V or not, the Constitution would be changed as a result.

This suggests strongly that the Thirteenth Amendment (and, of course, the Fourteenth Amendment as well) changed multiple aspects of the structure of the eighteenth-century Constitution.  Not just slavery was abolished, but the “federal consensus,” the idea that there were features of state law that absolutely had to be beyond federal control.  This is precisely why Democrats opposed the amendment.  As Oakes rightly concludes, the Thirteenth Amendment “implied a fundamentally different view of the nature of the federal Union.  For Democrats freedom depended on state rights, and slavery was one of the things states were by right free to have.”  But not once the Thirteenth Amendment was ratified, of course.  Provided it was supported by state building, the nature of American federalism had changed and so with it, the baseline for understanding future constitutional development.

The resistance to amendment in antebellum America, even during the Civil War, shows plainly that a deep political logic lay behind the phenomenon of amendment avoidance.  Furthermore, the circumstances of the Reconstruction amendments cuts against the view that Article V has served the country well as an avenue toward reasonable reform.  Although no one doubts that the Reconstruction amendments made fundamental changes to the Constitution, the fact that it took the bloody struggle of the Civil War to ensure their adoption shows that public officials did not easily accept that amendments are sometimes necessary to accomplish essential political reforms.  Although some scholars point to the Progressive era amendments as showing that Article V can be used to make reasonable reforms, historical research (by Lisa McGirr in terms of Prohibition) has also suggested a powerful link between some of these amendments and the consensus needed to fight World War I.  Again, significant constitutional change seems to require a war, which counts against the idea that Article V is a reasonable, available outlet for reform.

It is not news that an enormous amount of constitutional change happened off-text in some sense in the twentieth century.  But there has been an issue of how best to characterize this change.  So far, the new element added by my argument is that the foundation for this non-textual, non-amendment change was laid by repeated decisions in the antebellum era to resist amendments, what I have termed amendment avoidance.  Amendment avoidance implies that at least some of the constitutional changes of the twentieth century could have been roughly at the level of the Reconstruction amendments, truly epochal changes to the constitutional order (although the promise of the amendments may have been undermined as we will discuss below).  Is there a plausible way to vindicate and justify this intuition?  The test my theory imposes is that the asserted change be a departure from the original constitutional baseline, conceived in historicist terms.  Further, the change must be reflected in positive law and accompanied by state building, the deliberate institutionalization of the change so it can be reproduced across generations.  Among the twentieth-century changes discussed by scholars, three stand out as fulfilling these conditions rather easily: (1) a new conception of the power of the presidency; (2) a new role for the national government as a whole in regulating the economy and influencing state governance; and (3) the advent after World War II of the national security state.  These examples are widely discussed in the literature and have some support as permanent constitutional changes of such significance that they can be compared to major amendments.

These events are widely acknowledged, at least informally, as constitutional changes and so we might wonder what the idea of a historicist baseline contributes.  In response, consider the differing reactions of conservatives and liberals to these alterations to the constitutional order.  As we will see, conservatives and libertarians rejected the New Deal was an unconstitutional departure from the previous baseline while remaining mostly accepting of the new laws and institutions of the national security state.  Meanwhile, liberals supported the New Deal as completely consistent with the Constitution, in line with the prominent advocacy to that effect by FDR and, eventually, the Supreme Court itself.  Partly in reaction to the Eisenhower presidency, liberals came to articulate a conception of the “imperial” presidency that they would later turn against.  This turn made liberals skeptical of the constitutional foundations of the national security state, making the conservative and liberal positions on the foundations of the constitutional order mirror images.

One of the main virtues of insisting on a historicist baseline amid these partisan reactions and changes of view is to keep our accounts straight in the sense of leaning against the undue influence of today’s concerns.  This is a deep topic which I cannot explore here.  For now, consider whether the conception of national power in the early republic really supported the New Deal.  Although a case can still be made that FDR was right, scholars have increasingly cast doubt on the self-confident assertions of New Dealers that the Marshall Court, for example, fully supported their conception of the commerce power.  There are additional problems with the historical record as far as supporting a robust account of the presidency, particularly with respect to war powers.  A historicist baseline forces us to think about these matters in terms of where things stood before these changes became a matter of ideological and partisan contention.  This helps to counteract the narrative of continuity that too easily dominates legal discourse and suggests that American constitutionalism has experienced massive shifts not only in ground-level interpretations of constitutional meaning but in the structure of the institutions responsible for reproducing that meaning over time.

In making these admittedly general observations from thirty thousand feet, it is wise to think globally.  That is, it should be borne in mind the sheer oddity of what American constitutionalists have been trying to do for decades and are still trying to do – move forward with a very old constitution from the late eighteenth century while mostly resisting chances to update the document through amendments or overhaul it.  It would be useful to compare this remarkable generations-long effort with similar long-lived constitutions in other countries, but as the leading empirical study (Elkins, Ginsburg, and Melton) confirms, there is no other country which is in the same extraordinary position.  The U.S. is truly an outlier, “exceptional” if you like.  Constitutional change in other countries (and in the American states!) is fast and furious compared with the Article V stasis which characterizes the U.S. at the national level.  This gives us few markers to even begin to grasp how difficult this task has been or what its consequences might be.  It thus should not be assumed too easily that Americans have been able to adapt the Constitution successfully outside Article V.  The truth may be quite different – that there have been substantial costs to amendment avoidance.

This is well illustrated by the case of conservative objections to the New Deal, a reaction which in many ways is still with us.  Right up to the Reagan presidency, scholars could regard Senator Barry Goldwater’s rejection of the New Deal in his book The Conscience of a Conservative as an aberration, rejected by an overwhelming bipartisan and scholarly consensus.  After the “Reagan revolution,” it wasn’t so easy.  Subsequent scholarship has revealed the depths of the rejection of the principles of the New Deal among American conservatives.  It is certainly true that President Eisenhower won plaudits for accepting certain features of the New Deal, such as social security and unemployment insurance.  But the sort of movement conservatives who came to dominate the Republican party after Reagan took office did not see Eisenhower as one of their own.  It is true that the Reagan presidency often seemed to be more about rejecting President Johnson’s Great Society rather than the New Deal.  But our subsequent experience has shown this to be merely the opening move.

If the New Deal had broad political support, what was the basis for conservative objections?  Conservatives saw themselves as following a principled (rather than pragmatic) political theory and the New Deal violated those principles on many levels.  If their theory stood for limited government, the New Deal was frankly expansionist.  If they emphasized personal liberty and property rights, the New Deal stood for their systemic invasion.  If the conservative reaction to crises such as depressions and wars was to see government measures as temporary, then the New Deal seemed permanent.  Furthermore, all of this occurred – and it could not occur otherwise – without notable reversals by the Supreme Court in longstanding precedents and without (as conservatives saw it) any open debate on matters of constitutional principle through the only legitimate process – Article V.

In this respect, there is a close connection between the concerns of contemporary originalists, conservative or not, and the Republicans who rejected the New Deal in the 1940s, 1950s and after.  They share the belief that constitutional amendment is the only legitimate path to making significant constitutional changes that contravene prior law.  They also share a belief that Article V is an available path – that it is not “impossible” or unreasonably difficult. 

This is doubly significant because it explains why conservatives have resisted as illegitimate the most likely explanation for the constitutionality of the New Deal – approval by the Supreme Court.  We need to proceed cautiously in making assertions that the Court is the institution responsible for adapting the Constitution to new circumstances.  Perhaps some of our fellow citizens are under the impression that certain constitutional changes can be made through amendments only.  To be sure, all law students learn the cases in which the Court seemed to switch course beginning in 1937.  But recall that many believe that certain Court decisions have functioned as equivalent to amendments.  All you need to complete the picture is that, as the Constitution reserves amendment for a specific process in which the states have the last word and as there is a clear difference between “interpreting” the Constitution and “amending” it, it is thus illegitimate for the Court or any other branch of government to perform an amending function.  This skips past what many see as the “New Deal settlement” in which there was broad acceptance of the new role for government.  Taking a historicist baseline seriously, however, means perceiving that the supposed settlement was not acceptable across all political lines.

I hope this discussion will begin to move the needle from relatively unproductive attempts to quantify amendment difficulty to the real issue – a choice of constitutional futures.  One is where we choose to continue the experiment, unique in world history, of seeing how long we can last trying to adapt the Constitution in informal ways that are nonetheless subject to challenges of legitimacy.  The other path is to make formal amendment more relevant to constitutional change by making it easier for serious proposals to be considered by Congress and the people of the United States.

Stephen M. Griffin is W.R. Irby Chair and Rutledge C. Clement, Jr. Professor in Constitutional Law, Tulane Law School.  Email:

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