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Explicit & Authentic Acts Amending the U.S. Constitution, 1776-1995
Explicit and Authentic Amending the U.S. Constitution, 1776-1995 by David E. Kyvig. UP of Kansas,1998
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Paperback
First published January 1, 1996
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July 22, 2016
This is a big fat book about amending the American Constitution. It is magisterial in its scope and detail. In addressing how we amend our fundamental law, Kyvig gets to the heart of American constitutionalism, which is embodied in Washington’s admonition in his Farewell Address, that the Constitution, “till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all.”
Kyvig covers all of the amendments that succeeded, starting with the Constitution itself, which amended the Articles of Confederation. Some were technical corrections while others, like the 14th Amendment, were massive structural shifts. He also covers some amendments that did not succeed, such as the Equal Rights Amendment and the child labor amendment. In discussing these, he explores why some amendments succeeded and others failed.
As he details the history, he makes some very interesting conclusions. For example, he notes that judicial decisions are easier to get than amendment, but are not a substitute for it. Judicial decisions are not permanent changes, and they lack the legitimacy of amendments. New Deal progressives debated amendments, but found problems with the language of them, and were afraid that they would fail to pass, so they decided to depend on court decisions. That is a main reason why the New Deal constitutional revolution is still contested – because it was accomplished through judicial interpretation, rather than constitutional amendment.
He also argues that the Civil War was a victory for Article V because, it established, among other things, that Article V, rather than state nullification, was the way to alter the Constitution.
He illustrates the tension between the people and their representatives – in spite of doubtful popular support, the prohibition amendment was ratified by state legislatures who were lobbied heavily by organized prohibition groups. The amendment was repealed by the 21st amendment, which was ratified by state conventions, elected by the people by secret ballot to vote only on the amendment.
He also shows how popular opinion about amendment has changed. At times, people think it is too hard. At other times, they think it is too easy. But the history shows that when there is a consensus, amendments happen.
These detailed historical accounts are important and instructive. But the heart of the book – what makes it so worthwhile – is Kyvig’s compelling case that Article V, the provision for amendments, expresses the heart of our constitutional faith.
The Articles of Confederation could only be amended by unanimous consent of the states. This made change practically impossible and led to the Articles being discarded. The Philadelphia framers knew that an instrument of government needed to be changeable but still stable. So they designed Article V to require more than just simple majorities. They knew that some sections of the country might be tempted to change the constitution to disadvantage other sections, so they required ratification by three quarters of the states. More than that, Article V also contains checks and balances within it. Congress is the main player in amendments, but the state legislatures can also force an amending convention. Congress can also check state legislatures by sending amendments to conventions instead of legislatures for ratification.
In many ways, Article V embodies the Declaration’s pronouncement about changing governments – that the people have the right to alter or abolish existing arrangements when they become destructive of their legitimate purposes and lay the foundations of new government, but that governments should not be changed for “light and transient causes” and it is often better to suffer minor evils rather than abolish the existing arrangement.
The fact that the Constitution could be amended more easily than the Articles of Confederation was a big reason that it was ratified. Even though it was not perfect, it could be changed through defined procedures. The states that were in doubt about the wisdom of the Constitution were won over by the possibility of amendment. Most of the later ratifications were accompanied by lists of proposed amendments. Without Article V, the Constitution would not have been ratified.
Kyvig’s close detailed analysis of the history of amending the Constitution yields some lovely gems of understanding. It goes to the heart of our beliefs in and about constitutionalism. Law should be written and known. Change should be possible, and the mechanisms for change should be understood and agreed on in advance. That way disagreement is channeled into political discourse rather than violence and upheaval. And however a person thinks the balance between stability and responsiveness should be struck, the endurance of our constitutional experiment for over 200 years suggests that Article V’s balance works.
The book also answered some fundamental questions that have always bothered me. The greatest is this: How does the Constitution have a claim on our allegiance, when no person now living helped frame it or voted to ratify it? The mere fact that we acquiesce in its operation is unsatisfactory to me. But the history in this book lays bare the basis for the Constitution’s legitimacy – we can change it. History has shown that it can be changed without bloodshed, through established legislative procedures. Moreover, the history shows that amendment is not insurmountable. The Constitution has been amended 27 times. And, as the Declaration states, change should not be undertaken lightly. Because it can be changed without revolution, the Constitution demands and deserves our respect. As Washington said, until it is changed by an explicit and authentic act of the whole people, it is sacredly binding on us all.
Kyvig covers all of the amendments that succeeded, starting with the Constitution itself, which amended the Articles of Confederation. Some were technical corrections while others, like the 14th Amendment, were massive structural shifts. He also covers some amendments that did not succeed, such as the Equal Rights Amendment and the child labor amendment. In discussing these, he explores why some amendments succeeded and others failed.
As he details the history, he makes some very interesting conclusions. For example, he notes that judicial decisions are easier to get than amendment, but are not a substitute for it. Judicial decisions are not permanent changes, and they lack the legitimacy of amendments. New Deal progressives debated amendments, but found problems with the language of them, and were afraid that they would fail to pass, so they decided to depend on court decisions. That is a main reason why the New Deal constitutional revolution is still contested – because it was accomplished through judicial interpretation, rather than constitutional amendment.
He also argues that the Civil War was a victory for Article V because, it established, among other things, that Article V, rather than state nullification, was the way to alter the Constitution.
He illustrates the tension between the people and their representatives – in spite of doubtful popular support, the prohibition amendment was ratified by state legislatures who were lobbied heavily by organized prohibition groups. The amendment was repealed by the 21st amendment, which was ratified by state conventions, elected by the people by secret ballot to vote only on the amendment.
He also shows how popular opinion about amendment has changed. At times, people think it is too hard. At other times, they think it is too easy. But the history shows that when there is a consensus, amendments happen.
These detailed historical accounts are important and instructive. But the heart of the book – what makes it so worthwhile – is Kyvig’s compelling case that Article V, the provision for amendments, expresses the heart of our constitutional faith.
The Articles of Confederation could only be amended by unanimous consent of the states. This made change practically impossible and led to the Articles being discarded. The Philadelphia framers knew that an instrument of government needed to be changeable but still stable. So they designed Article V to require more than just simple majorities. They knew that some sections of the country might be tempted to change the constitution to disadvantage other sections, so they required ratification by three quarters of the states. More than that, Article V also contains checks and balances within it. Congress is the main player in amendments, but the state legislatures can also force an amending convention. Congress can also check state legislatures by sending amendments to conventions instead of legislatures for ratification.
In many ways, Article V embodies the Declaration’s pronouncement about changing governments – that the people have the right to alter or abolish existing arrangements when they become destructive of their legitimate purposes and lay the foundations of new government, but that governments should not be changed for “light and transient causes” and it is often better to suffer minor evils rather than abolish the existing arrangement.
The fact that the Constitution could be amended more easily than the Articles of Confederation was a big reason that it was ratified. Even though it was not perfect, it could be changed through defined procedures. The states that were in doubt about the wisdom of the Constitution were won over by the possibility of amendment. Most of the later ratifications were accompanied by lists of proposed amendments. Without Article V, the Constitution would not have been ratified.
Kyvig’s close detailed analysis of the history of amending the Constitution yields some lovely gems of understanding. It goes to the heart of our beliefs in and about constitutionalism. Law should be written and known. Change should be possible, and the mechanisms for change should be understood and agreed on in advance. That way disagreement is channeled into political discourse rather than violence and upheaval. And however a person thinks the balance between stability and responsiveness should be struck, the endurance of our constitutional experiment for over 200 years suggests that Article V’s balance works.
The book also answered some fundamental questions that have always bothered me. The greatest is this: How does the Constitution have a claim on our allegiance, when no person now living helped frame it or voted to ratify it? The mere fact that we acquiesce in its operation is unsatisfactory to me. But the history in this book lays bare the basis for the Constitution’s legitimacy – we can change it. History has shown that it can be changed without bloodshed, through established legislative procedures. Moreover, the history shows that amendment is not insurmountable. The Constitution has been amended 27 times. And, as the Declaration states, change should not be undertaken lightly. Because it can be changed without revolution, the Constitution demands and deserves our respect. As Washington said, until it is changed by an explicit and authentic act of the whole people, it is sacredly binding on us all.
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