The Constitution: Above the Fray
The Congress has been stricken with constitutional amendment fever. More constitutional amendment proposals have been taken seriously in Congress in the current session than at any time in recent memory. Some have even come close to passing. An amendment calling for a balanced budget passed the House twice and came within one and then two votes of passing in the Senate. An amendment allowing punishment of flag-burners easily passed the House and fell just three votes short in the Senate.
Other proposed amendments continue to circulate - including amendments that would impose term limits on Congress, permit religious speech with public funds, confer procedural rights upon crime victims, denaturalize children of illegal immigrants, and require three-fifths votes to raise taxes, to name a few.
Many of these amendments are bad ideas. But they are dangerous apart from their individual merits. The Constitution was, as Chief Justice John Marshall once wrote, "intended to endure for ages to come." Thus it should be amended sparingly, not used as a chip in short-run political games. This was clearly the view of the framers, who made the Constitution extraordinarily difficult to amend. An amendment must be passed by two-thirds of each house of Congress and ratified by three-fourths of the states - unless three-fourths of the states call for a wholesale constitutional convention. Not surprisingly, the Constitution has been amended only 27 times in our history - and ten of those were the Bill of Rights.
Our traditional reluctance to amend the Constitution stands on good reason today, the will of the framers aside. First, it is a bad idea to politicize the Constitution. The very idea of a constitution turns on the separation of the legal and the political realms. Losers in the political short run obey the winners out of respect for the constitutional framework set up for the long run. This makes the peaceful operation of ordinary politics possible. The more a constitution is politicized, the less it operates as a fundamental charter of government.
Remember Prohibition
Two examples are instructive. The only modern constitutional amendment to impose a controversial social policy was a failure. The 18th Amendment imposed Prohibition. Fourteen years later, the 21st Amendment repealed it. As Justice Oliver Wendell Holmes, Jr., once wrote, "a constitution is not meant to embody a particular economic theory," for it is "made for people of fundamentally differing views."
As a second example, consider the experience of the states. In contrast to the spare federal constitution, state constitutions are typically voluminous tomes. They are loaded with specific provisions resembling ordinary legislation and embodying the outcome of special-interest deals. As a result, they command far less respect than the federal Constitution.
A second reason to resist writing short-term policy goals into the Constitution is that they nearly always turn out to have bad and unintended structural consequences. Consider congressional term limits. Advocates of a term-limits amendment claim that rotating incumbents out of office would decrease responsiveness to special interests and make the federal government more responsive to popular will. But would it? There's a better chance that term limits would shift power from Congress to the permanent government that staffs the executive branch and agencies, where special-interest influence would remain untouched.
To take another example, advocates of the balanced-budget amendment focus on fiscal claims that elimination of the deficit will help investment and growth. But they ignore the structural consequences of shifting fiscal power from Congress to the president or the courts. The power of the purse was intentionally reposed by the framers in the most representative branch. As James Madison wrote in The Federalist, the taxing and spending power is "the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people." The balanced-budget amendment, however, would tempt the president to impound funds, or at least threaten to do so in order to gain greater leverage over Congress. And it would tempt the courts to enter a judicial quagmire for which they are ill equipped. When is the budget in balance? Whose estimates should we use? Lawsuits over these questions could drag out for years.
The third reason not to amend the Constitution lightly is that it sometimes amounts to a mutiny against the authority of the Supreme Court. We've lasted 200 years with only 27 amendments because we've given the Supreme Court enough interpretive latitude to adapt the basic charter to changing times. Our high court enjoys a respect and legitimacy uncommon elsewhere in the world. That legitimacy is socially salutary, for it enables the court to settle or at least defuse our most ideologically charged disputes.
Current constitutional revisionists, however, suggest that if you don't like a Supreme Court decision, mobilize to overturn it. If the court holds that free speech rights protect flag-burners, just write a flag-burning exception into the First Amendment. If the court limits student prayer in public schools, rewrite the establishment clause to replace neutrality toward religion with equal religious access rights instead. Such amendment proposals no doubt reflect the revisionists' frustration that court-packing turns out to be harder than it seems - Presidents Reagan and Bush ended up appointing more moderate than conservative justices. But undermining the authority of the institution itself is an unwise response to short-term disappointment.
Judicial discretion
In any event, it is illusory to think that a constitutional amendment will somehow eliminate judicial discretion. Most amendment proposals are, like the original document, written in general and open-ended terms. Thus, they necessarily defer hard questions to ultimate resolution by the courts. Does the balanced-budget amendment give the president impoundment power? Congress settled this matter by statute with President Nixon, but the amendment would reopen the question if passed. Does splattering mustard on your Fourth of July flag napkin amount to flag desecration? A committee of senators got nowhere trying to write language that would guarantee against such an absurd result.
For the most part we have managed to keep short-term politics out of the rewriting of the fundamental charter. Now is no time to start. Of course, on rare occasions, constitutional amendments are desirable. We have passed various structural amendments to tie our hands against our short-term sentiments. For example, we have passed amendments that diluted the votes of white men by expanding the franchise to blacks, women, and teenagers. We have provided for the popular election of senators and imposed a two-term limit on even our most popular presidents. But unless the ordinary give-and-take of our politics proves incapable of solving something, the Constitution is not the place to go to fix it.
*Kathleen M. Sullivan is a professor of law at Stanford University. This essay is from a collection entitled "The New Federalist Papers," which will be published by The Twentieth Century Fund early next year.
