February 20, 2012 – Essay #1 – The Amendment Process – Guest Essayist: Dr. Larry P. Arnn, president of Hillsdale College, and author of The Founders’ Key: The Divine and Natural Connection Between the Declaration and the Constitution and What We Risk by Losing It
Only with a large effort can the Constitution of the United States be formally amended. This was not an accident, but the intention of its framers.
If the Constitution is changed too often and for the wrong reasons, the people of America, the Founders held, will lose reverence for its principles, and respect for its rule. With reverence lost, they might cease to be a self-governing people. Tyranny itself could topple liberty.
The Constitution is difficult to amend not because the Founders distrusted the people. In fact, they trusted the American people more than any other constitution-makers had ever before trusted a people. They took pride in the fact that no separate or special class of persons would hold any authority under the Constitution. They created no aristocracy or favored group, and their design did not pit one group of citizens against another.
Instead, they rested all power in the hands of the people. Then they divided that power so as to encourage fairness and deliberation in their judgments. It is the “reason alone of the people that must be placed in control of the government,” writes James Madison in Federalist 49. “Their passions must be controlled by the government.”
Our American regime is the first in which sovereignty lies outside the government—in the people. The Constitution’s structure in its original form was designed to bring power and restraint together. The people must come to respect the restraint of the government so that its properly-limited power might be upheld. The Constitution provides for limited government so that the natural rights of citizens can best be secured.
In this sense, Alexander Hamilton noted that the Constitution itself, even before it was amended, was “a bill of rights.” Adding the first ten amendments, which the First Congress did in 1791, marked a reaffirmation and an explicit statement of rights held by the people and the states, but all of these are affirmed in the original structure of the Constitution—with its separation of powers, representative form, and limited grant of power to the government. All of these essential features of good government were stated with unmistakable clarity in the Declaration of Independence.
Today, the Bill of Rights is often confused as the source of American liberties. In fact, as both Madison and Hamilton knew, it is the Constitution’s structure that provides the surest bulwark of our liberties. Destroy the structure, and liberty will be lost. Alter the structure significantly (see the Seventeenth Amendment), and liberty is endangered.
Without reverence for it, the Constitution, like the Bill of Rights that is now part of it, will be but a “parchment barrier.”
Out of the more than 5,000 amendments to the Constitution proposed in Congress since 1789, only 27 have been adopted. There are two possible ways to amend the Constitution, both of them specified in Article V. All of the current amendments to the Constitution have been adopted following the first path, wherein votes are required by two thirds of both houses of Congress, followed by a vote of three-fourths of state legislatures.
The other path, to date not used successfully, is the convention method, in which two-thirds of the state legislatures can call a constitutional convention, after which three-fourths of the state legislatures or state conventions must then ratify the proposed amendment or amendments to the Constitution. Conventions have been avoided probably for good reason, since it is not clear to anyone whether a convention would be bound to changing only one item in the Constitution. We Americans have been pleased to have only one Constitutional Convention.
The New York Times recently noted that outside of the defunct Yugoslavian constitution, there is no other constitution in the world so hard to amend as ours. By coupling our Constitution with a failed state, the article seemed to imply that if we don’t get with the times, we will be left behind. Our country, they quote a justice of Australia’s high court as saying, is becoming a “legal backwater.”
For over a hundred years the Constitution has been assailed as undemocratic, and in need of an overhaul.
Long is the list of books written recently suggesting ways—formal and informal—to make our Constitution better. When formal amendment efforts fail, informal methods are advanced. Efforts to informally amend the Constitution—to bring it into better congruity with fashionable legal and political norms of today—can be successful only if citizen reverence for the Constitution is lost.
—Dr. Larry P. Arnn is president of Hillsdale College, and author of The Founders’ Key: The Divine and Natural Connection Between the Declaration and the Constitution and What We Risk by Losing It. Hillsdale’s “Constitution 101,” an online course which features lectures by Dr. Arnn and others, starts today. For more information on Constitution 101, go to: http://constitution.hillsdale.edu