| James N. Markels | ||||
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Writing Resume |
by
James N. Markels 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. |
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