Why People Aren’t Clamoring for Constitutional Amendments

Over at Dutch Courage, Tim laments our country’s current relationship with our Constitution. Part of the problem, he argues, is that people today feel like they don’t know or understand the Constitution; and this can lead to bigger problems – including our not amending it enough:

The Constitution used to be formally amended more frequently than it is today. It is counter-intuitive that it is now seldom amended even as people tend to understand less and less of its “original” meaning… If Americans are taught that they can’t understand what their Constitution says—or worse, that it has no fixed meaning at all—then they will never agitate for change.

I would disagree with the second part of that quote, as I think Tim is confusing disagreement with apathy. In my experience, people who are Originalists feel pretty confident that they know the Constitution but that the Living Documenters don’t – and vise versa. But everyone seems to me to be pretty sure they know of what they speak. (Even when they don’t. Last week in an airport bar I had a long conversation with someone who knew the minimum wage was guaranteed by an amendment in the Constitution. He might have been ignorant, but his ignorance did not prevent him from claiming to be an expert on the Constitution.)

What I’d like to focus on here, though, is Tim’s concern that a lack of Constitutional amendments being passed in today’s age represents a turning away from our most precious founding document. It certainly is true that amendments, though talked about often, are almost never passed. In fact, in my adult life only one has ever been passed, and that was all the way back in 1992.

But is this a bad thing?

I’d like to argue that it isn’t. I’m not a Constitutional scholar like Tim or Burt, but Tim’s issue isn’t with the scholars so much as the public at large. Being a member of said public, I’d like to take a stab at arguing why we  as a public don’t push for amendments and conventions at the drop of a hat.

As everyone knows, the amendment system is designed to change the framework of our entire nation when it isn’t working correctly. But the fact of the matter is, our country actually operates fairly smoothly right now. We have a tendency to forget this, because we tend to focus on partisan squabbles; this leads us to perpetually believe that we are a step away from living like the Road Warrior, when in fact we are self-evidently pretty strong and resilient. So I would argue that the reason we do not amend our Constitution is that it is not really needed in today’s age.  Tim is also correct that in other ages, it seems more amendments were added to the Constitution.  But I’m not so sure we need follow suit.  In fact, let’s look at all those amendments that were passed by our fore bearers.

When I look at our current amendments, I put them into four groups:

Group One : Finishing the Initial Job

Included Amendments:

The Bill of Rights
11th (Sovereign Immunity)

In this group I essentially put the first 11 amendments, which by and large were added by the same folks that gave us the unblemished framework a few years earlier. In my mind, it’s hard not to think of these amendments as a continuation of the same process that they had started four years earlier.

Non-continuation amendments don’t seem to me to really start until we get to the next group.

Group Two : Housekeeping Issues

Included Amendments:

12th (Presidential Election Procedures)
16th (Income Tax)
17th (Senate Elections)
20th (Lame Duck)
22nd (Presidential Term)
25th (Presidential Succession)
27th (Congressional Salary)

These amendments are all essentially housekeeping issues. They are corrections that work to whatever degree they do because the Founders did not foresee the logistical internal difficulties a government for a growing country would encounter. The founders might never have seen the need for an income tax, for example, but when the time came that there was not enough money in the coffers to perform the day-to-day functions of a government with a standing army, a change was made.

With the obvious exception of income tax, however, people that are neither in elected office, working for a political party, or belonging to that strange group of sad crazies that actually follow politics as a hobby care little about housekeeping issues. They view it as the Constitutional equivalent of that bulletin your office sends out the first week of January that notes which days the company will recognize as paid holidays.

In the unlikely event that we do see an amendment in the next ten years, it will most likely be a housekeeping issue. (Eliminating filibustering? Long terms rather than lifetime appointments for judges?) And it will be passed by a bipartisan legislature in a way that is detached from public debate – similar to the 27th in ’92.

Group Three : Correcting Shameful Omissions

Included Amendments:
13th (Slavery)
14th (Post Civil War Citizenship)
15th (Racial Suffrage)
19th (Women’s Suffrage)
23rd (DC Suffrage)
24th (Income Suffrage)
26th (18-21 Year Old Suffrage)

All of these amendments forced us to become the nation we always claimed to be in regards to the whole all men being created equal thing. All of these recognized groups of adults that were specifically kept from basic rights other adults took for granted.

There aren’t a lot of amendments of this type being passed now, but this is because by and large there isn’t a need. The only group that I can think of that might not be treated fairly under some laws that might actually have a shot of having an amendment passed in my lifetime are the gays and lesbians. But it is doubtful they will need one. One should not need an amendment passed each time someone’s civil rights are infringed upon. It seems that court rulings based on existing law and changing popular opinion will make such an amendment unnecessary.

Group Four : Partisan Social Engineering

Included Amendments:
18th (Prohibition)
21st (Ends Prohibition)

Most people – even recovering alcoholics – reject Prohibition-style partisan social engineering in the Constitution. More than any of the other groups, these are the types of amendments that have no shot of being passed in my lifetime.

Ironically, though, this last group is the one where new proposed amendments you hear at election time usually come from. Think: Flag burning, gays can’t marry, or even if you’re Muslim you can’t swear into office using a Quran. But the politicians who cry for them almost never float them seriously. Instead, these simply act as rallying cries to get out the vote and the checkbook.

So there you have it. This is why we as a people choose not to amend the Constitution very much at all these days. We might choose to change some internal housekeeping issues, but for now everything is operating well enough there is not enough consensus to make me think that we really will. We seem to be in a place where it’s getting harder and harder to discriminate basic human rights away from our own citizens; and in those areas where we continue to fall down (e.g.: Muslim terror suspects), it has more to do with our ignoring the Constitution than the Constitution needing amending. And we have decided by and large that the Constitution is to be a framework, not a place to toss whatever partisan red meat of the day is making the talk radio circuit.

Having few amendments passed in today’s age isn’t a sign that we’re falling down.  It’s a sign we’re standing tall.