The Merriest Amendment and Constitutional Theory

Yesterday was the 82nd anniversary of the Twenty First Amendment, repealing Prohibition, which had been imposed by the Eighteenth Amendment just fourteen years earlier. Repeal was a happy day, not only for those who drink alcohol but also for the many people saved from a culture of violence that the illegal business of evading Prohibition generated.

Beyond its good social consequences, the repeal of Prohibition has implications for constitutional theory. Many critics of our Constitution contend that the amendment process, which requires two thirds of Congress and three quarters of the states for enactment, is too strict. Moreover, critics claim that its excessive stringency has become even clearer as more states have joined the union. This argument is often used to support the claim that originalism needs to be discarded, since we need judges to update a Constitution whose amendment process is inadequate.

But Prohibition and its repeal provide a riposte to that claim. As Mike Rappaport and I argue in Originalism and the Good Constitution, the rapid consensus that the Eighteenth Amendment was a mistake supports our position that the amendment process is not too strict.  As stringent as Article V is, it still permitted enactment of a provision that was quickly admitted to be a costly failure, illustrating the dangers of a less stringent amendment process. And at the time there were forty-eight states in the union—just two fewer than we have today.

More generally, as we note in our book, reviewing the history of proposed constitutional amendments also casts doubt on the argument that Article V is too stringent. Most of the six amendments that passed Congress but failed in the state legislatures and thus came closest to enactment can now been seen as obviously bad or of doubtful value. For instance, one was a badly drafted and confusing effort about representation in Congress. Another would have entrenched slavery beyond constitutional amendment!

Two of the six proposed amendments that failed can be argued to have substantial value—an amendment banning child labor and one providing equal rights for women. But the failure of these proposed amendments illustrates another one of the main propositions of our book: that nonoriginalism threatens the effective working of our otherwise reasonable amendment process. We argue, for instance, that FDR essentially abandoned the  the push for ratifying the Child Labor Amendment in favor of a strategy of getting the Supreme Court itself to gut the limitations of the enumerated powers.

The relationship between the failure of the ERA and nonoriginalism is even clearer. The Supreme Court had already anticipated much of the substance of the proposal with a series of decisions that updated the Fourteenth Amendment to include substantial restraints on discrimination on the basis of sex. Consequently, there was less need for the amendment than if the Court had interpreted the Constitution according to its original meaning. And even more importantly, the ratification debate over the ERA took place in the shadow of the period of the most anti-originalist decision making in our history— that of the Warren Court. Many people no longer trusted the Court and feared it would read the ERA as another blank check to impose unisex bathrooms and other extravagances that they did not intend.

Thus, when you toast the end of Prohibition, toast Article V as well. The amendment process is a reasonable one, but only if we interpret the Constitution according to its original meaning.

Reader Discussion

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on December 06, 2015 at 22:28:38 pm

The Court has violated its limited role. No longer faithful to the Constitution, it has dangerously morphed into an arbitrary, unaccountable, black-robed gaggle of elite ljudicial oligarchs. The founders never intended that a Court of 9 mere mortals should rule our lives as this Court has.

Judicial Supremacy has supplanted Constitutional Supremacy.

An amendment is necessary to more effectively regulate the Supreme Court. This should entail a role for the States in the selection and removal of Justices as well as the ability of a majority of States to nullify Court rulings. Congress has proven to be totally inadequate to the task.

My hope--and expectation--is that this idea will be seriously entertained by the Article V Convention of States currently in process.

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Jim Delaney
on December 07, 2015 at 10:10:07 am

"Many people no longer trusted the Court and feared it would read the ERA as another blank check to impose unisex bathrooms and other extravagances that they did not intend."

Gee, what a bunch of dolts THEY were!!!!
Can you imagine, THE COURT so ruling / decreeing unisex bathrooms, etc - what were those other extravagances BTW - could it be transgender rights to high school locker room showers?

It could never happen, right, John? - right, John?????????

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on December 07, 2015 at 16:07:34 pm

It's just one more example of the the conflict between the Madisonian (original) Constitution and the Jeffersonian (non-original) Constitution.

The Madisonian Constitution attempted to put natural nobles into the role of preventing popular rages from setting the course of government. For the same reasons it was also designed to prevent popular rages from easily modifying the form of government.

After the populist Jeffersonians shifted the course of national government from natural nobility to popularity, proposals for amendments have had a tendency toward populist rages. The 18th amendment, prohibiting alcohol, is an excellent example of that. With populism at the wheel, government attempts at reforms tend to favor popular rages.

The current rage is for a balanced budget amendment proposal, which is simply another attempt to gain more populist control over government. It would be just another paver of good intentions on the road to hell.

The Constitution by its design prevents amendments based on popular rages, and today's popular variation on American government tends to produce rage-based proposals for amendment. As a consequence it seems like the Constitution makes it too difficult to make an amendment.

But really, it doesn't.

The Constitution makes it difficult for government in its current form to make an amendment. In contrast, a true Madisonian government would not have much difficulty making amendments under the Constitution since the proposals would tend to be more well-reasoned and rational, and therefore more likely to receive supermajority approval.

Because populist attempts at amendment are held in check by the Madisonian design, populists must use other methods to implement their rage-based proposals. They generally follow the course of making claims of popular mandates and follow with judicial activism, or of the branches of government silently agree to ignore parts of the Constitution, while an unhappy public minority suffers an expanding loss of liberty, and with it, happiness.


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Scott Amorian

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.