By Daniel Lazare
This is the Catch-22 of American constitutional politics. We the people are free to propose any structural reform we want except that they’ll all suffer the same fate: strangulation at the hands of petty politicians in Washington or the state capitals.
Russ Feingold and Peter Prindiville, The Constitution in Jeopardy: An Unprecedented Effort to Rewrite Our Fundamental Law and What We Can Do about It. Public Affairs, 320 pages, $29.
This reviewer read Russ Feingold and Peter Prindiville’s new book, The Constitution in Jeopardy, so you, dear reader, won’t have to. The reason is the usual one: it’s not very good. It tackles an all-important question that almost no one wants to talk about: the amending clause set forth in Article V of the US Constitution. But Feingold, a three-term veteran of US Senate from Wisconsin, and Prindiville, a fellow at the Stanford Constitutional Law Center, do so in a way that will have any halfway-informed reader tearing his or her hair out in frustration.
Article V consists of a single 130-word run-on sentence governing how constitutional change may occur. Despite certain contradictions and ambiguities, the general thrust is clear: changing so much as a comma is verboten without the approval of two-thirds of each house of Congress plus three-fourths of the states. The first requirement is difficult enough, but the second is a real killer. In 1787, the year the Constitution was drafted, it meant that four out of thirteen states representing less than 10 percent of the population could veto any change sought by the other 90. More than two centuries later, it means that 13 out of 50 states representing as little as 4.4 percent can veto the other 95.6. By the year 2040, it means that veto power will be down to just 4.2. The older the Constitution gets, the more change-averse it grows.
The consequences are disastrous. Everyone knows the drill: a legislative branch that is little more than a war zone; a Senate that is so monstrously imbalanced that it allows the majority of the country that lives in just 10 states to be outvoted four-to-one by the minority in the other 40; an Electoral College that triples the weight of lily-white bastions as such Wyoming and the Dakotas, and so on. Not all of this is due to Article V of course, at least not directly. But a hyper-restrictive amending clause means that any and all attempts at structural reform are doomed from the get-go. Change is impossible because infinitesimal minorities are in a position to just say no in perpetuity. The Article V repair kit bequeathed by the founders is inadequate to the task, so we the living have no alternative but to sit and stew as the system disintegrates around us.
To their credit, Feingold and Prindiville recognize that things are reaching a tipping point and that something must be done. A dysfunctional amending clause, they write, “has created a system rife with bad incentives” that encourage a well-placed legal elite to read into the Constitution whatever it wishes. The results are not all negative, obviously, but, then, every edict that Louis XVI handed down was not all negative either. But even at its best, the upshot is “a charade of intellectualized legal philosophizing that allows outcomes-based interpretive approaches to contravene the People’s grant of authority.” The elite is permitted to make off with the document while “we the people,” the force that supposedly created it in the first place, are reduced to hapless bystanders.
This is dangerous because it leads to all kinds of paranoid ravings about what “they” are doing to “our” Constitution. (Try updating the Second Amendment, for example, and see what happens.) Still, The Constitution in Jeopardy gets the diagnosis wrong and the remedy as well. Feingold and Prindiville believe in a restrictive amending clause (to a degree) and argue that Article V needs only a little bit of tweaking to set everything right. “The ideal constitutional system should chart a course between the Scylla of populist fervor and the Charybdis of ossification,” they write, “seeking a middle way in which amendments is legitimately feasible but infrequent.” To this end, they end with a less-than-stirring call for a bipartisan congressional commission that will bring together “members of the public, constitutional scholars, state legislative leaders, and members of Congress” to come up with a new approach. Among their suggestions: lowering the requirement for two-thirds approval; cutting the states out of the equation by submitting proposed amendments to a national referendum; setting new rules for constitutional conventions, etc. Goldilocks would heartily approve since the aim is an amending clause that’s not too restrictive and not too loose either, but just right.
Come, let us reason together, as LBJ used to say. But there are so many things wrong with this approach that it’s hard to know where to begin. Feingold and Prindiville may not have noticed, for one thing, but bipartisanship has been dead on Capitol Hill for a generation. Democrats and Republicans are so afraid that the other will gain an advantage if Article V is loosened even a smidge that they can be counted on to just say no in perpetuity. For another, a blue-ribbon panel consisting of “experts” with lofty titles and super-duper resumes will be just as elitist as the present arrangement, if not more. So the people will be shut out just as surely. Third, whatever any such panel comes up with – assuming it comes up with anything at all – it will still have to run the same old two-thirds, three-fourths gauntlet. This is the Catch-22 of American constitutional politics. We the people are free to propose any structural reform we want except that they’ll all suffer the same fate: strangulation at the hands of petty politicians in Washington or the state capitals.
Finally, there’s an iron law of history to consider, or, rather, two. One is the simple rule that the longer change is forestalled, the more radical it will be when it finally arrives. After 230-plus years of deepening rigidity, the hunger for change is so great that it will be impossible to admit it in mere dribs and drabs. To the contrary, once the door opens even a crack, the people will push on through. This is what keeps America’s corrupt gerontocrats up at night: the knowledge that change will be fierce and uncontrollable once it occurs. It’s why they’re determined to keep the entrance locked and bolted for as long as possible.
But this leads us to the other iron law of history, which is that they can’t keep doing so forever. Sooner or later, they’ll have to let go. If Feingold and Prindiville are in any doubt as to what will happen next, they should consult the people who struggled to keep afloat once the dam broke in France in 1789. They’ll get an earful.
Daniel Lazare is the author of The Frozen Republic and other books about the US Constitution and US policy. He has written for a wide variety of publications including Harper’s and the London Review of Books. He currently writes regularly for the Weekly Worker, a socialist newspaper in London.
Gerald Peary says
Great article, Dan, until your deranged neo-Marxist conclusion that “the hunger for change is great” (not in my neighborhood!) and that, I guess, the Revolution a la 1789 is coming to the USA. Huh? Really, Dan. Huh?
Dan Lazare says
The hunger for change was apparently not great in France either. In 1788, Louis XVI left Versailles (something he rarely did) to tour new harbor works in Cherbourg and was lustily cheered at virtually every step of the way in the course of his two-day journey. Despite the monarchy’s growing fiscal troubles, anyone viewing the procession would have agreed that the crown’s relationship with the French people was unbreakable. Yet, five years later, no one lifted a finger when Louis went to the guillotine. It was only when people were given an opportunity for change that they realized how famished they were after centuries of denial.