Courts, not amendments, best route for constitutional reform

Following controversial recent Supreme Court decisions on abortion, guns and environmental regulation, expect members of Congress to propose constitutional amendments seeking to counter or extend the rulings, says a Cornell government expert.

Just don’t expect lawmakers to work very hard to win their passage.

Since the mid-20th century, Congress has repurposed Article V of the U.S. Constitution – which establishes the formal amendment procedure – from a tool for constitutional reform into a mechanism for taking positions on issues, according to research by David A. Bateman, associate professor of government in the College of Arts and Sciences and the Cornell Jeb E. Brooks School of Public Policy, and collaborators.

“Members of Congress are signaling to voters what they think the Constitution ought to be, but not seriously trying to implement the amendments,” Bateman said. “They are not playing their constitutionally required role of interpreting the Constitution and acting as an equal constitutional branch.”

Bateman is a co-author of “Judicial Power and the Shifting Purpose of Article V,” published June 7 in Studies in American Political Development, with Stephan Stohler, associate professor of political science at the University at Albany, and Robinson Woodward-Burns, assistant professor of political science at Howard University.

Article V, they note, sets one of the highest bars for reform compared with other national constitutions, requiring two-thirds of Congress to approve amendments and three-fourths of state legislatures to win ratification. The Constitution has been amended just 27 times, and only 17 times since ratification of the Bill of Rights in 1791.

As the number of states multiplied and as polarization has increased, Article V requirements have grown more burdensome, leading some scholars to dub Article V “disused,” “comatose” and “irrelevant.” Yet members of Congress have proposed nearly 12,000 constitutional amendments – nearly half over a 30-year period starting in 1960, and more than 60% since 1953. Why, the authors asked, did lawmakers engage in such seemingly futile efforts?

To answer that question, the scholars pursued the first systematic amendment-level analysis, creating a database that cataloged the substance, timing and sponsors of all 11,969 proposed amendments.

As expected, the data shows spikes in amendment introduction during several periods of constitutional crisis: the founding, Civil War and New Deal. But a surge during the civil rights era corresponded with a period of successful constitutional adaptation, according to the researchers, following Warren Court decisions that expanded rights in areas including free speech, equal protection and criminal procedure.

“We argue that the rise of federal judicial power during the middle of the 20th century led members of Congress to repurpose Article V as a tool primarily for position-taking,” the authors write. “The Supreme Court became a central player in articulating and defining the Great Society constitutional order.”

Opponents of that order used Article V to propose court-curbing measures that amounted to empty threats but may have appeared substantive to constituents, the analysis determined. But the increased use of Article V was not matched by efforts to build coalitions needed to advance the proposed amendments.

“The low probability of passage lets members take a position on an issue without concern for the consequences of its realization,” the authors write.

The scholars trace Article V’s shifting purpose through four case studies. Examples include the (never ratified) Equal Rights Amendment, introduced in 1923 with the sincere goal of constitutional change and pursued until its approval by Congress in 1972 – by which time the courts were understood to be the more expedient route for achieving reform. In contrast, the Federal Marriage Amendment, first proposed in 2003 to restrict marriage to heterosexual couples, helped mobilize conservative voters but never garnered serious consideration.

Proposing Article V amendments solely for the purpose of taking positions may have encouraged popular debate about the Constitution, the researchers suggest. On the other hand, it risks reinforcing perceptions that constitutional change is unachievable.

If lawmakers were truly committed to constitutional reform, they would instead seek to pass legislation overturning Supreme Court decisions, limiting the court’s jurisdiction or packing the court, Bateman said.

“That’s how Congress now can most effectively play its constitutional role of a check and an interpreter of the Constitution,” Bateman said. “But I expect we’ll see a flurry of Article V amendments, and I expect that most of those will indicate a lack of seriousness on Congress’ part.”

Read the story in the Cornell Chronicle.

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