February 8th, 2010

On Amendments and Constitutional Purity


photo credit: lamsonlibrary

Given the resurgent popularity of the Constitution in many conservative political circles as of late, ideological opponents have taken to looking for weaknesses in position and policy that are susceptible to attack. One of the more tiresome and ignorant retorts deals with the desire by some proponents of the Constitution to amend it.

The argument goes something like this: how can a person who claims that the Constitution is inspired and so important simultaneously advocate that it be changed without appearing hypocritical?

This question betrays a deep misunderstanding not only of the position of supporting a constitutional amendment, but of the Constitution itself. Included within this revered (but long since discarded) document is the ability and authority to change it—something that has been already done 27 times. To support the Constitution, then, implies different things to different people. Does a constitutional supporter advocate only for the version free of any amendments, or the one that includes the Bill of Rights (the first ten amendments), or the one as it stands today, or some other iteration of the document?

Many advocates of the Constitution will, like myself, have qualifiers for amendments—both those already passed and those proposed. Some amendments have augmented the principles enshrined in the Constitution, such as giving women the power to vote, outlawing slavery, and each and every one of the amendments included in the Bill of Rights. On the other hand, some amendments have run wholly contrary to these principles, including and especially the 16th amendment (which provided for a direct income tax) and the 17th amendment (which destroyed federalism).

Taken in this way, one’s principled support for the Constitution is just that: support for principles. Thus, in addition to advocating for some amendments which would strengthen the Constitution according to the principles of liberty, limited government, and state sovereignty it was founded upon, a constitutional supporter might also propose repealing some of its alterations that have forced it to stray from that standard.

It is not hypocritical to express support for the Constitution while suggesting ways it can be modified to be better. The framers of this important document recognized the need for it to adapt where desired, and thus provided for this possibility in Article V which details the process by which it may be amended. Ironically, then, it is those who want to improve the document while adhering to its restraints that show the most respect and support for the Constitution.

14 Responses to “On Amendments and Constitutional Purity”

  1. David
    February 8, 2010 at 3:21 pm #

    Hmm – I wonder what brought this issue to the fore? Anyone who argues that a desire to amend the constitution is inherently disrespectful to the Constitution is looking at the issue from a very poorly informed vantage point.

    Thanks for tackling the subject Connor.

  2. Clumpy
    February 8, 2010 at 3:50 pm #

    Great, succinct point Connor. Respecting the Constitution in my mind is equivalent to respecting the rule of law, including the prescribed method for changing the document’s contents when prudent and in the service of the higher principles it aspires to.

  3. a concerned mommy
    February 8, 2010 at 3:51 pm #

    Well said!

  4. James U
    February 10, 2010 at 10:19 am #

    As an attorney who teaches constitutional case law, and a conservative who deeply respects the constitution, here are some amendments I’d like to see some healthy debate about:

    *Repeal of the 17th Amt (or some other method of re-establishing state power at the federal table)
    *Balanced budget amendment
    *State judiciary check on the Supreme Court (judicial autonomy is critical, but letting state courts override the Supreme Court as a final check is a worthwhile discussion)
    *Repeal of the 16th Amt
    *No-strings-attached amendment that prohibits the federal government from taxing states, and then refusing to fund states who do not comply with all their “suggestions”

    And the list can and should continue. Even if we don’t actually amend in all of these ways, this type of discussion is healthy for free societies like ours.

    None of the founders ever suggested the Constitution is perfect. Those who can’t think clearly enough about the Constitution are nervous by the thought of amending. Those who understand it see the need.

  5. Clumpy
    February 10, 2010 at 1:23 pm #

    James, I think what you propose illustrates a fundamental difference between status quo politics on both sides (and especially within the now-deluded teabagger movement) and true small government politics.

    EDIT: I definitely mean that in a good way. Principle, not deception and pragmatism.

  6. Travis
    February 11, 2010 at 12:01 am #

    I agree with you. The constitution can be amended. I like the idea of getting rid of Amendment 17.

    I also agree that not all suggested amendments should be done. Because they are inherently wrong.

  7. Charles
    February 11, 2010 at 10:58 am #

    Rather than repeal Amendment 17, I would suggest we simply get rid of the Senate altogether. It is inherently and intentionally undemocratic and serves no purpose other than to slow down or block legislation that the majority of citizens want. I would also eliminate the Electoral College, add an amendment indicating that corporations are not persons and have none of the rights enumerated in the Constitution for persons.

    The problem we have is a lack of democracy and a lack of responsiveness of the government to the people. Let’s fix that first.

  8. jeffersonian liberal
    February 11, 2010 at 11:02 am #

    God justified the Constitution and the amendments up to and including the missing 13th amendment that had to do with titles of nobility, which were all that was enacted when the revelation that is D&C 98 was given. Then He said that ANYTHING more or less than this cometh of evil.

    Since God knows the end from the beginning and he knows the hearts of men, we can be relatively assured that what has come since that revelation is evil – at the very least they need to be reconsidered in the light of the justification given by the Lord. The first thing we need to do is repeal ALL of the amendments after the 12th, re-enact the titles of nobility amendment that God thought was so good, and then be VERY careful.

    But only in a perfect world – in which we definitely do not live.

  9. Connor
    February 11, 2010 at 2:19 pm #

    Charles,

    Madison totally dismantled your suggestion on several occasions when responding to the similar suggestions made in his own day for a unicameral legislature. Lack of democracy is a good thing since we’re (maybe still) a Republic. And as for being a “slow down” mechanism, I welcome that, as did the Founders — that’s why the amendment process, for example, is so difficult. The eagerness to legislate is not a praiseworthy tendency. We need to repeal the 17th amendment, and restore the federalism in our bicameral legislature so that states once again have representation.

  10. James U
    February 11, 2010 at 2:24 pm #

    Charles, I have two words for you. Study Greece.

  11. Charles
    February 11, 2010 at 4:57 pm #

    The Founders did a number of things designed to protect private property and the privileges of those who had property over and against those who did not, not to mention those who WERE property. While eagerness to legislate may not always be praiseworthy, inability to legislate is far worse and that’s where we are now. We should also not assume that providing more power to the states vis-a-vis the federal government will result in better governance, more freedom, a stronger economy, or a better life for ourselves and our posterity. On the contrary, we should assume that all the problems currently festering in the federal government will exist in our several state governments with the additional problem of a race-to-the-bottom competition between the state governments to serve their corporate masters.

    We need to let go of ideological belief systems and face the 21st century realities. We have a dysfunctional government at virtually every level, a populace with little or no faith in the ability of government to do anything useful, and an electoral system that more than ever before favors those with the most money over the majority of the people.

    No government cannot solve every problem, but lack of government cannot either, neither can the “free” market, neither can individuals acting alone or in small groups. Instead of latching on to an ideology, why not be pragmatic? Instead of hoping some mechanism that has never worked well before will suddenly work now, why not give the people a chance?

  12. James U
    February 11, 2010 at 5:06 pm #

    Charles, if institutional mechanisms (or “auxiliary precautions” as Madison called them) will not preserve freedom because people will refuse to be bound by them, why would a people without such restraints suddenly govern themselves?

    Check out Greece’s political history if you’d like an actual example.

  13. Charles
    February 11, 2010 at 5:27 pm #

    James, how exactly does having a bicameral legislature in which one house is incapable of functioning preserve anyone’s freedom? A democratic government is a difficult thing to obtain and more difficult to keep, but it provides a simple mechanism for protecting people against governments that restrain their freedom – voting them out.

    Our bicameral government has seriously eroded our freedoms over the last 60 years and if anything, the Senate has been more supportive of those moves than the House. With free elections, with no private money permitted and with instant run-off voting, the people would realize they once again had a reason to vote and could vote for those who preserve their freedoms.

  14. Ron
    February 20, 2010 at 3:58 pm #

    Charles,
    Removal of the Senate really isn’t an options. Where else can old blowhards get a public paycheck for hundreds of years without doing actual work.

    Plus, the point of the Senate is so that states like California and New York with huge populations don’t hold hostage the states like Alaska with very small populations.

    I do however, LOVE your idea of an amendment stating that a corporation is not a person…..

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