Explicit and Authentic Acts

Amending the U.S. Constitution 1776-2015 With a New Afterword

David E. Kyvig

• Publisher: University Press of Kansas
• Year: 2016
• ISBN:
  9780700622306
• Topic: Política y relaciones internacionales
• Subtopic: Constituciones

Winner: Bancroft Prize

Winner: Henry Adams Prize

Winner: Ohio History Association Book Prize

In time for the 225th anniversary of the Bill of Rights, David Kyvig completed an Afterword to his landmark study of the process of amending the US Constitution. The Afterword discusses the many amendments, such those requiring a balanced federal budget or limiting the terms of members of Congress, that have been proposed since the book was originally published and why they failed of passage. At a time when prominent scholars and other public figures have called for a constitutional convention to write a new constitution, arguing that our current system of governance is unsustainable Kyvig reminds us of the high hurdles the founders created to amending the constitution and how they have served the country well, preventing the amendment process from being used by one faction to serve the passions of the moment.

In his farewell address, President Washington reminded his audience that the Constitution, "till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all." He regarded the Constitution as a binding document worthy of devout allegiance, but also believed that it contains a clear and appropriate procedure for its own reform. David Kyvig's illuminating study provides the most complete and insightful history of that amendment process and its fundamental importance for American political life

Over the course of the past two centuries, more than 10, 000 amendments have been proposed by the method stipulated in Article V of the Constitution. Amazingly, only 33 have garnered the required two-thirds approval from both houses of Congress, and only 27 were ultimately ratified into law by the states. Despite their small number, those amendments have revolutionized American government while simultaneously legitimizing and preserving its continued existence. Indeed, they have dramatically altered the relationship between state and federal authority, as well as between government and private citizens.

Kyvig reexamines the creation and operation of Article V, illuminating the process and substance of each major successful and failed effort to change the formal structure, duties, and limits of the federal government. He analyzes in detail the Founders' intentions; the periods of great amendment activity during the 1790s, 1860s, 1910s, and 1960s; and the considerable consequences of amendment failure involving slavery, alcohol prohibition, child labor, New Deal programs, school prayer, equal rights for women, abortion, balanced budgets, term limits, and flag desecration.

1

“HERE SHALL BE THY BOUNDS”

The Rise of Constitutionalism

The United States Constitution, George Washington told his fellow citizens as he bade farewell to the presidency in 1796, “till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all.” The first president regarded the basis of the American political system to be “the right of the people to make and to alter their constitutions of government.”¹ Washington made clear not only that he regarded the 1787 Constitution as a fixed and binding framework for the country’s government worthy of respect but also that he believed it contained a well-defined and appropriate procedure for its own reform. “If in the opinion of the people the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way the Constitution designates.”² Nine years earlier, at the conclusion of the Philadelphia convention that drafted the Constitution, the Virginian had written, “The Constitution that is submitted is not free from imperfections, but . . . as a Constitutional door is opened for future amendments and alterations, I think it would be wise in the People to accept what is offered to them.”³ After nearly a decade of further reflection, Washington declared, “This Government, the offspring of our own choice, uninfluenced and unawed, adopted upon full investigation and mature deliberation, completely free in its principles, in the distribution of its power, uniting security with energy, and containing within itself a provision for its own amendment, has a just claim to your confidence and your support.”⁴

The traumas of revolutionary change in government in 1776 and 1787 made Washington and his contemporaries eager to avoid a repetition of such upheavals when circumstances eventually again required some fundamental alteration of government. By the end of his term, the first president believed firmly in the constitutional amending process defined in Article V of the new federal Constitution. The amending article was a strikingly original political device based on recently evolved notions of written constitutionalism, popular sovereignty, and federal republicanism. Washington was convinced that the 1787 Constitution equipped with Article V would provide the United States with a stable yet flexible structure of government that could endure.

By 1796 American political culture embraced George Washington’s perspective on constitutionalism, including his view of constitutional reform. The notion of routine constitutional change by specific, prearranged, extralegislative means was a particularly remarkable and new concept. It had emerged in America during the previous two decades as Washington was leading the military campaign to defend the American political decision for independence, chairing the Philadelphia convention, and serving as the first chief executive under the new Constitution. Washington bore little responsibility for the evolution of the means to avoid wholesale overthrow of governments by provision for their peaceful, consensual restructuring. Yet the first president’s Farewell Address attested to the degree to which the concept of written constitutionalism and its corollary of formal amendment had become embedded in the minds of the founding generation of American political thinkers and practitioners.

In order to understand the operation of a system for constitutional revision over the subsequent two centuries as well as to evaluate the influence of that system in shaping or failing to shape the nature of American government, which are the purposes of this book, it is essential first to examine the evolution of the idea of constitutionalism and then to consider why and how the concept of constitutional amending arose. Only by confronting the assumptions on which written constitutionalism and amendment rested and investigating the circumstances of their creation can the performance of the amending system be properly evaluated. Thereafter it becomes possible to distinguish between the power of reform embodied in amendments and, conversely, the insecurity of change not formally embedded in a constitution. Both the purities of political thought and the impurities of political practice must be considered in order to grasp how Washington and his contemporaries could come to believe that only “an explicit and authentic act of the whole people” could and should alter constitutions.

CONSTITUTIONALISM, the authoritative articulation of the general principles, structures, and functions of government, is rooted in one of the oldest concerns of Western political culture: the felt need to define and limit the power of government so that it will carry out those tasks, and only those tasks, which the society wishes it to perform. Constitutions embody the agreements communities reached through one means or another as to the general form of their governments, the apportionment of power therein, and the acceptable boundaries of governmental practice. The Western concept of law underlies the constitutional approach. Law makes known the specific arrangements and requirements that the society will allow the government to enforce on the populace. Law provides for the standard treatment of similar circumstances rather than permitting varied and arbitrary governmental responses. Euripides wrote in the fifth century B.C.:

No worse foe than the despot hath a state,

Under whom, first can be no common laws,

But one rules, keeping in his private hands

The law: so is equality no more.

But where the laws are written, then the weak,

And wealthy have alike but equal right,

Yea, even the weaker may fling back the scoff

Against the prosperous, if he be reviled;

And, armed with right, the less o’ercomes the great.⁵

Other Greeks arrived at similar conclusions about government and law by different routes. Plato believed that the ideal form of government involved rule by philosopher-kings with no limits on their authority. “If a competent ruler should arise, they would have no need to be ruled by laws, ‘for no law or ordinance is mightier than knowledge.”’⁶ He eventually recognized, however, that such paragons of wisdom and virtue were not to be found. Grudgingly, he accepted as the best attainable alternative governments whose power was defined and limited by common agreement. Without law, Plato concluded, men “differ not at all from the most savage beasts.”⁷

Aristotle saw the ideal government of Plato’s Republic as dangerous and embraced his teacher’s second-best alternative, constitutionalism, much more enthusiastically. Unrestricted arbitrary power in the hands of any individual or class led to despotism, he concluded. Freedom and equality could be maintained only when governments were constrained by laws that the citizenry had participated in establishing or otherwise willingly accepted. In Politics, Aristotle developed at length his conclusion that law, not unrestrained human will, was the best means of ensuring satisfactory government.

Concepts of law and constitutionalism evolved much further in the Roman Republic. Cicero, the foremost articulator of Roman legal thought, portrayed the state as a corporate body belonging to its citizens and existing to supply their need for mutual aid and just governance. The Romans regarded only direct enactments of the people as law; every other sort of governmental act, decrees of the Senate, proclamations of magistrates or consuls, later even decrees of the emperor, gained legitimacy and authority from its relation to the law. The letters SPQR on the standards of the Roman legions proclaimed the primacy of law. Roman legions marched, as Romans lived, under the authority of Senatus Populusque Romanus, the Senate of the People of Rome. In theory at least, the sanction of the populus provided the foundation for the power of the state.

The onset of the Christian era brought to the fore the concept of natural law, fundamental and unchanging principles of divine design that bound all men and nations, and authority as derived from God. In the fifth century Augustine articulated the Christian notion of a spiritual world superior to the temporal world. For more than a millennium thereafter, Western political theory hinged on the assumption that the power to rule came from God, who bestowed it upon monarchs or emperors as his agents. The higher claims of the spirit limited the temporal authority of government and ruler; the guidelines of scripture set the bounds of worldly power. The very vagueness of such concepts led inevitably to the expansion of the claims of monarchy as well as to concerns to restrain them.

English constitutionalism was rooted in a desire to limit the arbitrary power of monarchs. The great gathering at Runnymeade in 1215 compelled an unwilling King John to accept the principle that terms agreed upon by peers of the realm set the bounds of royal authority. Furthermore, those terms applied equally to all and had force only if publicly proclaimed so as to be universally understood. Article thirty-nine of the great charter was the embodiment of its constitutional approach: “No free man shall be taken or imprisoned or [deceased] or outlawed or exiled or in any way ruined, nor will we go upon him nor send against him, except by the lawful judgment of his peers or by the law of the land.”⁸ Magna Carta directly linked the Aristotelian political philosophy of restricted power to the medieval English power struggle. The barons at Runnymeade, as they rejected the notion of the king’s arbitrary rule and permanently limited his prerogative, were asserting their power to act as society’s spokesmen in setting the terms of government.

To gain sanction for their rule, English kings after Runnymeade gradually began summoning representatives from counties and boroughs as well as the great lay and clerical barons to meet with them in Parliament. To ensure their authority, these representatives came with power of attorney to bind their constituencies to whatever laws or taxes they agreed upon. From this practice evolved the notion that Parliament had as much right to grant and limit governmental power as if the people had acted in person.⁹

As constitutional authority began evolving from the theoretical to the functional, its most obvious deficiency was its lack of means to deal with a government indifferent to law. Given its power, how was a government that chose not to obey the law to be restrained? In medieval theory, the church as repository and defender of divine law stood as a check on secular authority. Theologians found the issue of government troubling and reached different conclusions in regard to it. Augustine believed in unqualified obedience to the state, but by the time of Thomas Aquinas the view prevailed that government was obliged to behave in a just fashion. Both Martin Luther and John Calvin preached obedience to the authority of the state, counseling prayer or withdrawal in response to bad government. With the decline of the church’s power following the Protestant Reformation, the only available means of combating a government that ignored the law appeared to be the threat or use of revolutionary violence.

Increasingly elaborate and modern theories of constitutionalism emerged during the seventeenth-century English Civil War. King James I began this tumultuous century arguing for royal absolutism, a monarchy based on divine authority, possessing all sovereignty, free from control by Parliament or law and empowered to provide for the welfare of the people as it saw fit. Then after 1625 as his son Charles I exercised power more and more arbitrarily, fears of uncontrollable royal absolutism spread throughout Britain. After the Parliament of 1628 pressed Charles to accept its Petition of Right, a declaration of individual legal rights and liberties, the king avoided summoning another Parliament for as long as possible. Finally forced by his need for revenues to call Parliament into session in 1640, Charles faced a highly charged opposition that reversed his initiatives, then defeated his forces on the field of battle. The Long Parliament, or more precisely the militant Puritan Rump that remained by 1649, rejected completely the notion that the king could do no wrong and asserted ultimate parliamentary control over a law-breaking monarch by ordering his execution.

The Levelers of the 1640s, one of the most radical factions on the English political landscape and an influential element within the ranks of the Puritan army, not only opposed the absolutism of the monarchy but also came to object to what they saw as the arbitrary tendencies of Parliament. These energetic middle-class pamphleteers interested in economic reform rejected the Long Parliament’s inclination to support the status quo. Devoted Puritans, they resented what they saw as Parliament’s unauthorized actions favoring Presbyterianism. Stirred by the particular events of recent years but taking constitutional theory seriously, the Levelers argued that sovereignty, the ultimate authority to define and direct government, rested with the people. They maintained that the best means for the sovereign power to establish the terms under which not only the monarch but also the Parliament would function was through a written constitution setting forth the terms of government for all to see, instead of the prevailing imprecise mix of natural law, custom, and statute.¹⁰

John Lilburne, the leader of the Levelers and a constant advocate of “the rights of the people,” in 1647 offered the first written constitution for England. This Agreement of the People evolved through much discussion and several versions but rested upon bedrock Leveler principles. Most fundamental was the concept of sovereignty as belonging to the people, the entire community, rather than to the monarch as proponents of natural law proclaimed, or to Parliament as the Leveler’s Puritan rivals asserted. From the outset the question of how the will of the people was to be articulated represented a major stumbling block for the theory of popular sovereignty.

The Levelers contended that Parliament possessed only delegated authority; the actual human beings who composed the nation had the natural right to determine the fundamental laws even if they normally allowed Parliament to act for them. Rejecting the traditional English notion that Parliament represented the great “interests” such as land, corporations, and church, the Levelers offered the new view that Parliament represented all Englishmen equally and directly. Such views led eventually to advocacy of universal manhood suffrage and equality of representation in Parliament. More immediately, however, they led toward the assertion of the power of the people themselves to establish a constitution that would def...