How often should we amend the Constitution? It’s not a common question, that’s for sure. We tend to think of the Constitution as something holy, revered, and too good to risk messing up. When we see how profound and important some of the Amendments have become to our society, it is natural to be cautious. Nobody wants another Prohibition fiasco. But is there a risk to being overly wary of amendments?
I bring this question up because talk has started in Congress about creating a new amendment–the Federal Marriage Amendment–that would forever ensure that marriage in America is only between a man and a woman. Of the several arguments in opposition to the FMA, one is the oft-repeated notion that amending the Constitution is really serious stuff, only to be done under the direst circumstances. Besides, part of the great charm about the Constitution is that it is so short and elegant–roughly 4,000 words–that it seems the wiser for it. What’s the value of a Constitution that’s as big as a volume of the Federal Register?
While I think the FMA is idiotic–much like the flag-burning amendment that is reanimated every congressional session like some slasher villain–I’m not sure whether reserving amendments for only the utmost need is a good policy. The fact of the matter is, the Constitution gets amended constantly already through court decisions, as the meaning of clauses like “due process” and “establishment of religion” are constantly tinkered with. The real question, then, isn’t whether to amend the Constitution, but whether amending is better done by the courts, through their decisions, or by the amendment process.
It seems to me that if the amendment process is only used for extreme circumstances, as is currently the trend, then courts will feel forced to stretch and play with the language of the Constitution for the less important changes. This has the advantage of being rather flexible, as previous decisions and interpretations can be discarded as needed. On the other hand, this approach degrades constitutionalism, since courts will be looking outside the language of the Constitution for solutions.
A process where amendments are more commonly considered sends a message to the courts that it is not necessary to stretch the Constitution since the people, through the legislatures and the states, will be sure to update the document when needed. The amendment process is far more cumbersome than a court decision, but at least it’s more accountable.
In other words, a static Constitution will tend to push the courts into a more fluid jurisprudence that is less predictable and less tied to the Constitution, while a more active amendment process may encourage courts to stay within the boundaries of the language and adopt a more predictable jurisprudence since it can rely upon the policy decisions coming from elsewhere. And by a “more active amendment process” I don’t mean that more amendments should be ratified–merely that the process should not be seen as a Hail Mary pass. Even a failed amendment informs the courts as to what Congress thinks is definitely outside of the Constitution.
I propose a Housekeeping Amendment, which would contain in it a myriad of provisions that bring our Constitution up to date. For example, the Constitution allows for an Army and a Navy, but no Air Force or Marines, both of which are completely separate sections of the armed forces. Add them. The Constitution allows the power to “coin money,” but not print it since in 1787 printed money was considered too easy to counterfeit. Add the power to print money. You get the idea.
The purpose is to make official the stuff that is already done outside the literal language of the Constitution. Obviously, the Housekeeping Amendment wouldn’t change how things work now, but it would change how we do things in the future. It would send the message that the reason why something isn’t in the Constitution is because the people don’t want it strongly enough, not because we’re just saving up for something more important. When it comes to a document like the Constitution, even the little rules make a big difference. Tidying up the loose ends would signify Congress’ intent for the Constitution to mean what it says and no more, discouraging courts from taking the law into their own hands. Regardless of your political persuasion, it’s safer on the whole to leave changing the law in the purview of the people than the elite judiciary.
Besides, we’re due for an amendment. If you count the ten amendments in the Bill of Rights as one since they were all ratified together, we’ve amended the Constitution 18 times since ratification in 1787. That makes twelve years between amendments, and the last one was ratified in 1992. Maybe it’s time for a little housekeeping.
James N. Markels is a law student at George Mason University.