Amending the Constitution

Michael J. Totten has an interesting essay on the push to add an amendment to the Constitution. His premise is one I can agree with:

The very idea of using our Constitution the ban anything is viscerally repulsive to me, especially when we̢۪re talking about the harmless pursuit of happiness.

You don̢۪t have the freedom to rape and murder and steal, nor should you. That is universal. We do not, or at least I should say that we should not, limit the freedom of our citizens unless that freedom will be used to harm another. That is revolutionary.

That’s my preference as well. It’s not enshrined in the Constitution, though. The Constitution isn’t mere legislation–banning rape, murder, and theft is left to legislatures–but rather the basic set of rules by which governing is done. Indeed, most of the seventeen amendments passed after the Bill of Rights are rather ordinary housekeeping matters: banning lawsuits against states, tweaking the Electoral College, allowing a federal income tax, prohibition–and ending prohibition–of alcohol, rules for presidential succession, and limiting Congress’ right to raise its pay. Only the three Civil War Amendments, plus the 19th, 23rd, 24th, and 26th Amendments (women’s suffrage, DC voting in presidential elections, ending the poll tax, and lowering the voting age to 18) expanded rights in any way.

Michael cites Kevin Drum’s post pointing out that President Bush has called for, at one time or another, five amendments (Flag burning, Victims rights, Abortion, Balanced budget, and Gay marriage) and quip, “He really seems to think the constitution is just a rough draft, doesn’t he?” Says Michael, “Just think. If every president supported five new amendments and they all passed, how many would we have?”

Well, a lot. But they don’t pass because the Framers created a very difficult amendment process. But, of course, the Constitution is for all intents and purposes a rought draft. For example, an Abortion Amendment has already passed. We call it Roe vs. Wade. The Supreme Court ruled, in 1973, that the Constitution had a right never before seen, to choose to abort a fetus in the first two trimesters of pregnancy. They added it as amendment to the Privacy Rights Amendment (1965), otherwise known as Griswold vs. Connecticut. As FindLaw’s Annotated Constitution demonstrates, there have been dozens upon dozens of judicial amendments to the Constitution, not just the twenty seven that show up in my copy.

If we’re going to amend the Constitution so regularly, I’d much prefer that we do it in the manner actually prescribed in the Constitution, with a supermajority of the representatives of the people in Congress and three quarters of the states having their say, rather than have it done by unelected judges. Indeed, I find this whole discussion ironic, since George W. Bush has infinitely less power to amend the Constitution than does Sandra Day O’Connor.

James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. RicK DeMent says:

    You could also say the same thing about the doctrine of “compelling state interest”. How many rights have been curtailed or limited based on that phrase and that seems to be one that even strict constructionists buy off on. (I’m not saying it’s not correct but it is certainly extra constitutional). Also who did we get from the federal government power to grant charters of incorporation to corporations being considered a person with rights? Seems fairly extra constitutional. How about money = speech? I no of no other right that is transferable or that can be effectively extended by proxy.

    For crying out loud James you make it sound like liberals are the only ones who use the courts to do judicially what the can’t do legislatively. And we know that’s just not true, right?

  2. Paul says:

    If we’re going to amend the Constitution so regularly, I’d much prefer that we do it in the manner actually prescribed in the Constitution, with a supermajority of the representatives of the people in Congress and three quarters of the states having their say, rather than have it done by unelected judges.

    That was just worth repeating.

  3. James Joyner says:


    Nothing about liberals vs. conservatism in the post. It’s about institutions–the courts versus the other branches.

    I think the compelling state interest argument, like the Commerce Clause, gets stretched way out of reason. But there was a long tradition in the English Common Law backing the basic idea. The Framers didn’t intend for the right of free speech to be literally absolute; for example, slander was always considered regulable.

    I’m not familiar enough with contract law to know why there would be a Constitutional issue one way or the other with chartering corporations. It seems reasonable enough to me–interstate commerce, contracts, and the like are specifically in the Constitution.

  4. Also who did we get from the federal government power to grant charters of incorporation to corporations being considered a person with rights? Seems fairly extra constitutional.

    I’m pretty sure those rulings from the 1800s have long-since been overturned.

  5. James – Good post. I would also add that Bush knows perfectly well how little he has to do with the amendment process. In these matters, the Oval Office is pure Bully Pulpit. Bush is using his amendment backing simply to take a highly visible policy stance.

    So far as I see it, there’s nothing wrong with this. Some people might call it bad faith, but, given the limitations on his role here, I don’t think this is anything near the same thing as signing legislation and hoping the courts will later shoot it down.

  6. RicK DeMent says:


    Think again, the cooperation as a person rule current jurisprudence.


    Well your right you didn’t bring Conservative vs. Liberal it’s just that the examples you gave were all things associated with the left and you don’t seem to be able to think of one example of right leaning judicial activism. The recent Washington state case regarding the ability of a state to ban state funds for religious education stands out as one where the right abandon their typical attack on the incorporation doctrine since the case went their way (and the ruling was from the ninth no less).

    So fair enough you get the benefit of the doubt. I’m sure you’re thrilled [grin].

  7. James Joyner says:


    The two I cited were both on the most volatile issue of the past generation.

    There are conservative examples as well, mostly having to do with the criminal justice system. Clearly, 4th and 5th Amendment rights have been greatly eroded. That’s not quite the same as making up new rights out of whole cloth, but amounts to amendment just the same. The difference is that conservatives tend to uphold constitutionally-questionable actions on the parts of legislatures and executive officials rather than striking them down based on invented ideas. I’m not sure one’s inherently preferable to another.

  8. joy says:

    Holy Strawman Batman!

    James, your arguement is only valid if you believe that the Constitution is the Supreme Law of the Land. Funny that this issue is discussed within the first six weeks of any first year law school program.

    Article III, Section 2 of the U.S. Constitution
    Section. 2.

    Clause 1: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;–to all Cases affecting Ambassadors, other public Ministers and Consuls;–to all Cases of admiralty and maritime Jurisdiction;–to Controversies to which the United States shall be a Party;–to Controversies between two or more States;–between a State and Citizens of another State; (See Note 10)–between Citizens of different States, –between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

    Clause 2: In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

    Clause 3: The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

    U.S.C. 28, Section 1331 Federal Question Jurisdiction…
    The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws or treaties of the United States.

    In other words, we have set up the Federal Court system to answer questions that arise under the Constitution. If you reread Art. III, Section 2 again, it enunciates this clearly.

    Also, last time I checked, sole Supreme Court justices do not have more rights than the president to amend the Constitution, unless you’re thinking about certiorari.

    P.S. I’m not trolling, I really do need to know this for my Civil Procedure class. You’ve just given me a reason to crack open my Federal Rules book this morning. 😉

  9. James Joyner says:


    Of course I believe the Constitution is the Surpeme Law. What else would it be?

    Nothing in Art. III says that the Courts have the power to interpret the Constitution. Original jurisdiction simply means that a court of that level will hear it as a trial court rather than an appelate court. Marshall enunciated judicial review in Marbury in 1803 and the Court didn’t use it again in a federal matter until 1857 (Dred Scot).

    Presidents have zero power to amend the Constitution. They’re not in the process. A single, deciding vote by a Supreme Court justice has that effect, however.

  10. joy says:


    You’re going to have to define the term “arising under” which is found within Art. III. It appears you’re going to argue that “arising under” does not allow the judiciary to interpret the Constitution in order to, oh say, decide those controversies mentioned in Art. III?

    Also, you’re being a tad simplistic of your analysis of the influence of a SC justice, especially when there is an intricate process by which Constitutional questions are posed to the court. The Rehnquist SC only hears less than 1% of cases posed to it in any given year.

    Personally, I don’t think I really *want* the President (of any party) to have the power to amend the Constitution. Couldn’t we also argue that a single Congressperson or state legislature has that same power to amend? All it takes is one vote.

  11. James Joyner says:


    The litany in Art. III merely lists the types of cases that present federal questions; it’s intended to dilineate the role of the federal judiciary vis-a-vis those of the states.

    It takes 2/3 of both houses of Congress and 3/4 of the state legislature to formally amend the Constitution. It takes a simple majority vote at any level of the federal judiciary to issue major pronouncments that effectively amend the Constitution. There’s nothing particularly intricate as to the Court’s processes. They choose which cases to hear at essentially their whim. They hear 80-odd cases a year before they choose, at their sole discretion, not to hear the others.

    Presidents have zero say in the amendment process, other than the fact that they can vote for Congress, Senate, and state legislators just like the rest of us. They can publically advocate amendments, of course, but they have no direct role in the process.

  12. Paul says:

    Joy you need to spend a few more than six weeks in law school.

    The legislature does not have the power to amend the constitution… THAT is the point.

    The legislature passed the defense of marriage act under Clinton. It will not stand up to a FF&C attack. The only way to get it to stand up is to formally make it part of the constitution.

    Conversely the Judicial system can effectivly amend the constitution according to the whim of Sandra Day O’Connor. Roe v Wade invented a constitutional right to abortion.

    I’m not sure why the idea of amending the constitution confuses so many people.

  13. McGehee says:

    I’m not sure why the idea of amending the constitution confuses so many people.

    My opinion is that those people started out confused, long before they got around to the question of amending the Constitution.