According to its preamble the Constitution of the United States was established by “the People” — not by the states — “in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity . . .” As Abraham Lincoln perceptively observed, it created a government “of the people, by the people, and for the people.”
The Union created by the Constitution was unquestionably “more perfect” than the one formed by the states when they signed the Articles of Confederation. Under the Articles there was no central government authorized to resolve disputes among individual citizens, to tax or to impose any direct obligations on individuals, or to regulate commerce between or among the separate states. Like a treaty among multiple sovereigns, the Articles defined obligations that the former colonies assumed in their dealings with one another.
That article authorizes two methods of proposing new amendments — by two-thirds of both houses of Congress or by a convention for proposing amendments called by the legislatures of two-thirds of the states; and two methods of ratifying amendments — by the legislatures of three-fourths of the states, or by conventions in three-fourths of the states (this latter method has never been successfully used). Article V also prohibited two kinds of amendments. One of those prohibitions — the total ban on any amendment that would deprive any state, without its consent, “of its equal Suffrage in the Senate” — reveals that the framers viewed that body, rather than the executive or the judiciary, as the primary guardian of the sovereignty of the smaller states.
The second llimitation on the power to amend the constitution highlights the importance of the compromise that appeased the slave states. That limitation prohibited any amendment prior to 1808 that would allow Congress to regulate the importation of slaves. Article V did not, however, mention the bonus provided to the slave states in Article I’s formula for granting them representation in Congress. Even though slaves were not allowed to vote in any state in the South, three-fifths of them were counted for the purpose of determining the size of a state’s congressional delegation and the number of its votes in the Electoral College. In 1800 that slave bonus gave Thomas Jefferson more than the eight votes that provided his margin of victory over John Adams in the Electoral College. Not only did that bonus determine the outcome of that presidential election, but it also affected the work of Congress in the ensuing years when the interests of slave states and free states differed.
The procedures for amending the Constitution set forth in Article V have been successfully employed only eighteen times during the nation’s history. On the first occasion, the ten amendments, often described as the Bill of Rights, were all adopted at once; they placed specific limits on the powers of the new central government. Thus, the First Amendment begins with the command that “Congress shall make no law respecting an establishment of religion,” the preamble to the Second Amendment states that a “well regulated Militia [is] necessary to the security of a free State,” and the Third Amendment protects homeowners from the quartering of soldiers in time of peace. The Fourth Amendment protects individuals from unreasonable searches and seizures. The Fifth Amendment, appropriately, includes five separate guarantees: (1) the right to indictment by a grand jury in felony or capital cases; (2) protection against self-incrimination or (3) double jeopardy; (4) the right not to be deprived of life, liberty, or property without due process of law; and (5) the right to just compensation when property is taken for public use. The six amendment protects the right to a prompt and public trial, the right to confront hostile witnesses, and the right to a lawyer. The seventh Amendment protects the right to a jury trial in civil cases, and the Eighth Amendment prohibits excessive fines and cruel and unusual punishments. The Ninth Amendment provides that the enumeration of specific rights in the Constitution “shall not be construed to deny or disparage others retained by the people.” And the Tenth Amendment provides that the “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” It is undisputed that when they were adopted, the first ten amendments applied only to the federal government and placed no limits on the powers of the states.
Only two additional amendments were adopted prior to the Civil War. The Eleventh Amendment was a response to the Court’s decision in February of 1793 to accept jurisdiction of an action against the state of Georgia brought by a citizen of South Carolina named Chisholm to recover the price of military supplies sold to the state during the Revolutionary War. The amendment precludes federal jurisdiction over cases against a state brought by citizens of another state. Some critics of the Chisholm decision who believed that the common law doctrine of sovereign immunity should have foreclosed the suit have argued that the fact that the amendment was adopted so promptly proves that the Court’s decision came as a “shock” to the nation, which believed that the framers had left intact the sovereign immunity of the states for these types of suits. In fact, however, the amendment that was ultimately adopted was not proposed until March 4, 1794, more than a year after the Chisholm case was decided and more than eleven additional months elapsed before it was ratified. In contrast to that two year deliberative process the interval between the proposal on December 9th 1803 of the Twelfth Amendment which significantly revised the Electoral College procedures used to elect the president — and its ratification on June 15, 1804, was just a few days more than six months. President Abraham Lincoln played a major role in persuading Congress to propose the Thirteenth Amendment on January 31, 1865. That amendment, which abolished slavery, was not ratified by the states until December 6, well after his assassination on Good Friday in 1865. The Fourteenth Amendment, which awarded citizenship to the former slaves, was opposed by President Andrew Johnson and not ratified until July 9, 1868. That amendment was immensely important, not only because it granted African Americans citizenship, but also because it imposed on the states a federal duty to govern impartially. It provided that no state may “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Ulysses S.Grant was president on February 3 1870 when the Fifteenth Amendment which granted the former slaves the right to vote, was ratified. By maintaining federal troops in the Southern states, Grant made it possible for the new class of voters to affect the results of a number of state elections. At the end of his second term, in 1877, however, presumably as a result of the compromise that settled the dispute over the outcome of the presidential election of 1876 by awarding the victory to Rutherford B. Hayes, the federal troops were withdrawn and white supremacist groups like the Ku Klux Klan effectively put an end to African American voting in the South for the next eighty years. During that period, while the three-fifths slave bonus had been eliminated by Section 2 of the Fourteenth Amendment, the Southern states’ congressional delegations were enlarged by counting 100 percent of their African American populations, even though the discriminatory administration of local election laws combined with the terrorist tactics of the Klan prevented all but a few of them from actually voting. Thus, one could argue, the Southern states went from having a three-fifths bonus before the Civil War to having a five-fifths bonus during this period.
In 1913 two amendments to the Constitution were adopted. The sixteenth Amendment overruled the five-to-four decision of the Supreme Court in Pollock v Farmers Loan and Trust Co which held that a federal statute imposing a tax on income violated the constitutional prohibition against unapportioned “direct taxes”; that amendment is the source of the federal power to impose an income tax. The Seventeenth Amendment replaced the practice of having United States senators chosen by state legislatures with direct elections by the people.
The Eighteenth Amendment, prohibiting the manufacture, sale, or transportation of intoxicating liquors, became effective in 1919; it was repealed by Section 1 of the Twenty-first Amendment in 1933. Section 2 of that amendment prohibited the transportation of intoxicating liquors into any state that prohibited their use. While nationwide prohibition, the Nineteenth Amendment gave women the right to vote, and the Twentieth Amendment advanced the commencement of the president’s term in office from March 4 to January 20.
The Twenty-second Amendment adopted in 1951, when Harry Truman was president, formally endorsed George Washington’s decision that two terms as president were sufficient and rejected the possibility that a candidate as popular as Truman’s predecessor, Franklin Delano Roosevelt (who had been elected four times), might be elected more than twice. The Twenty-third Amendment gave the District of Columbia representation in the Congress and in the Electoral College. The ratification of the Twenty-fourth Amendment in 1964 finally abolished the poll tax in federal elections. The Twenty-fifth Amendment, which became effective in 1967, specified for the first time the procedures to be followed to fill a vacancy in the office of vice president and to respond to the temporary or permanent incapacity of the president. Those procedures were followed by Richard Nixon when he nominated Gerald Ford to become vice president after Spiro Agnew resigned. That amendment also provided that Ford should become president when Nixon resigned. In 1971, the Twenty-sixth Amendment gave citizens who are eighteen years or older the right to vote in both federal and state elections.
In the past forty years only one amendment has been adopted: the Twenty-seventh, prohibiting Congress from changing its salary between elections. It was first submitted to the states in 1789 but was not ratified until two centuries later, in 1992. In those forty years, however, rules crafted by a slim majority of the members of the Supreme Court have had such a profound and unfortunate impact on our basic law that resort to the process of amendment is warranted. One of those rules has changed the character and increased the cost of campaigns for public office, a second has changed the composition of the Congress as well as that of many state legislatures, and two others have unwisely curtailed the powers of Congress. Moreover, the Court’s death penalty jurisprudence, while improperly enhancing the risk of executing an innocent defendant, has simultaneously removed the principal justification for retaining that penalty. And the Court’s interpretation of the Second Amendment has given federal judges, rather than the people’s elected representatives, the final authority to define the permissible scope of civilian regulation of firearms.
I propose six amendments to the Constitution; the first four would nullify judge-made rules, the fifth would expedite the demise of the death penalty, and the sixth would confine the coverage of the Second Amendment to the area intended by its authors. The importance of reexamining some of these rules is already the subject of widespread public debate, but others have not received either the attention or the criticism that is warranted. For that reason, I shall begin with a discussion of the “anti-commandeering rule,” which prevents the federal government from utilizing critical state resources, thus impairing the federal government’s ability to respond to problems with a national dimension, and explain why it would be prudent to eliminate the rule before a preventable catastrophe occurs.