David E. Kyvig - Explicit and Authentic Acts: Amending the U.S. Constitution 1776-2015 With a New Afterword

EXPLICIT AND AUTHENTIC ACTS

EXPLICIT AND AUTHENTIC ACTS

Amending the U.S. Constitution, 1776 2015

With a New Afterword

David E. Kyvig

University Press of Kansas

1996 , 2016 by the University Press of Kansas
All rights reserved

Published by the University Press of Kansas (Lawrence, Kansas 66045 ), which was organized by the Kansas Board of Regents and is operated and funded by Emporia State University, Fort Hays State University, Kansas State University, Pittsburg State University, the University of Kansas, and Wichita State University

Library of Congress Cataloging-in-Publication Data

Names: Kyvig, David E., author.

Title: Explicit and authentic acts : amending the U.S. constitution, 1776 2015 with a new afterword / David E. Kyvig.

Description: Lawrence, Kansas : University Press of Kansas, 2016 . |

Includes bibliographical references and index.

Identifiers: LCCN 2016002974 |

ISBN -- 7006 - 2229 - (paperback)

ISBN -- 7006 - 2230 - (ebook)

Subjects: LCSH: Constitutional amendmentsUnited StatesHistory. | BISAC: POLITICAL SCIENCE / Constitutions. | LAW / Constitutional. | LAW / Legal History. Classification: LCC KF 4555 . K 2016 | DDC . 7303 dc LC record available at http://lccn.loc.gov/ 2016002974 .

British Library Cataloguing-in-Publication Data is available.

Printed in the United States of America

The paper used in this publication is recycled and contains percent postconsumer waste. It is acid free and meets the minimum requirements of the American National Standard for Permanence of Paper for Printed Library Materials Z .- 1992 .

TO CHRISTINE

PREFACE 2016

T HE TH ANNIVERSARY of the first success of the U.S. Constitutions amending process, the ratification of the ten amendments known as the Bill of Rights, occurs in 2016 . After the passage of so much time, it seems safe to say that the amending mechanism, the most innovative feature of the longest lasting written constitution in history, has played an important role in the development of American government. Often overlooked as the device that allowed the United States to modify significantly its fundamental instrument of governance as social and political conditions changed, yet invest those alterations with as much weight as other features of the nations highest law, the amending instrument and the results it produced to keep the Constitution functioning deserve more attention than they have received. Thus, I am grateful for the opportunity to update this general history of American constitutional amendment twenty years after its original publication.

As I noted two decades ago, if revolution involves the sudden and fundamental transformation of basic conditions, then surely the most soft-spoken revolutions are those that occur without violence, disorder, or trauma. In Western political culture, such revolutions were virtually unheard of prior to the late eighteenth century. Before that time, political revolutions involved the forceful overthrow of regimes, the toppling of monarchies, and the often bloody removal of holders of power. During the English Civil War, however, the thought began to stir that such upheavals might be avoided if the sovereign power of the state could define and limit government through written constitutions. By the end of the eighteenth century, particularly in North America, growing optimism regarding the human capacity for reason nourished the belief that fundamental changes could be wrought in otherwise enduring governments through a preordained and agreed-upon process that embodied democratic values. The formal revision of constitutions by previously established methods could bring about revolutionary changes in governments while at the same time legitimizing their continued existence. In other words, constitutional amendment offered a means of successfully balancing competing desires for stability and change, tradition and innovation, the wisdom of accumulated experience, and the aspiration for new democratic expressions of government obligation.

The United States of America, the first nation to incorporate an amendment mechanism into its constitutional system, has now operated under the same basic written instrument for more than two-and-a-quarter centuries. The connection between the existence of the amendment device and the durability of the Constitution is far from coincidental. During those two-plus centuries, the United States has undergone more than one revolutionary political transformation in which the terms of government were profoundly redrawn. Relationships between the states and the central authority were fundamentally altered, as were government controls over private property, government responsibilities to the individual, and mechanisms of republican rule. The individual changesmost notably, the articulation of civil rights and liberties; the abolition of slavery; the definition of citizenship; the establishment of direct, progressive taxation; the prohibition and then the reestablishment of the liquor trade; and the extension of suffrage to blacks, women, and late adolescentshave received considerable attention. The constitutional amending system itself, the process by which these and other momentous reforms were implemented, has attracted far less notice.

Forging an instrument to accommodate fundamental reform, the creators of the United States recognized, provided the best preparation for the changes their society and its governmental needs would inevitably undergo. Article V of the 1787 Constitution, outlining various amending processes, made manifest the idea that orderly constitutional revision from time to time was the original intent of the Founders. Equally evident was their notion that most matters of governance could be adjusted without resort to such extreme lengths. The repeated but not invariable use of the amending mechanism during the early years of the republic, while many of the Founders remained active in government, underscores their intention. The less frequent employment of amendment thereafter, except at moments of great constitutional challenge, further confirms that view. Altogether the Constitution has been amended twenty-seven times in just over two centuries of operation, though not once since 1992 . The roughly , words in those amendments come fairly close to the , words of the original instrument. Although most students of the Constitution have considered this to be very little amending activity, the evidence seems incontrovertible that without its capacity for formal alteration, the Constitution on more than one occasion would have confronted a far more disruptive revolutionary process.

Explicit and Authentic Acts illuminates the creation of the American amending system, the manner in which it functioned each time a major effort was made to change the Constitution, the nature of attempts to modify it, and, ultimately, its role in American constitutional development. The book begins, as any comprehensive history of the amending process must, by examining thought about amendment at the time of the creation of the first American constitutions, both those of the original states and that of the United States. The replacement of the initial Articles of Confederation arrangements for amendment by the Article V process is considered thereafter. On that base is built the complicated history of the subsequent operation of the amendment system. The individual circumstances of successful amending efforts and notable failures, together with judicial and political discussions of the Article V mechanism, provide the historical context vital to a nuanced appraisal of the amending system. This new edition, following a twenty-year period in which numerous amendments were proposed but none were adopted, offers an opportunity for further reflection on the occasional absence of amendment for extended periods. Connections between American constitutionalism and the nations past and present political order therewith become evident.