Courts, not amendments, best path for constitutional reform

In the wake of recent controversial Supreme Court rulings on abortion, firearms and environmental regulation, expect members of Congress to propose constitutional amendments aimed at reversing or extending the rulings, says an expert from the Cornell government.

Don’t expect lawmakers to work very hard to win 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 to a mechanism for taking positions on issues, research shows. by David A. Bateman, Associate Professor of Government at the College of Arts and Sciences and the Cornell Jeb E. Brooks School of Public Policy, and collaborators.

“Members of Congress signal to voters what they think the Constitution should be, but don’t seriously try 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 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 of Albany, and Robinson Woodward- Burns, assistant professor of political science at Howard University.

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

As the number of states multiplied and polarization increased, the requirements of Article V became more onerous, leading some scholars to label Article V “disaffected”, “comatose”, and of “irrelevant”. Yet members of Congress have proposed nearly 12,000 constitutional amendments — nearly half over a 30-year period beginning in 1960, and more than 60 percent since 1953. Why, the authors asked, lawmakers have- they engaged in seemingly futile efforts?

To answer this question, the researchers pursued the first systematic analysis at the amendment level, creating a database that listed the substance, timing, and sponsors of the 11,969 proposed amendments.

As expected, the data shows peaks in the introduction of amendments during several periods of constitutional crisis: the Founding, the Civil War, and the New Deal. But a push into the civil rights era corresponded to a period of successful constitutional adaptation, researchers say, following Warren Court rulings that expanded rights in areas such as free speech, equal protection and criminal procedure.

“We argue that the rise of the federal judiciary in the mid-twentieth century led members of Congress to repurpose Article V as a tool primarily for position-making,” the authors write. “The Supreme Court has become a central player in articulating and defining the Great Society’s constitutional order.”

Opponents of the order used Article V to propose court restraints that amounted to empty threats but may have seemed substantial to voters, the analysis determined. But the increased use of Article V has not been accompanied by efforts to form the coalitions needed to push through the proposed amendments.

“The low probability of passing allows members to take a stand on an issue without worrying about the consequences of carrying it out,” the authors write.

The researchers trace the evolution of the purpose of Article V through four case studies. Examples include the (never ratified) Equal Rights Amendment, introduced in 1923 with the sincere aim of constitutional change and continued until it was approved by Congress in 1972 – by which time the courts were considered the quickest route to reform. By contrast, the federal Marriage Amendment, first proposed in 2003 to restrict marriage to heterosexual couples, helped mobilize conservative voters but never garnered serious attention.

Proposing amendments to Article V solely for the purpose of taking a stand may have encouraged popular debate about the Constitution, the scholars 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 reversing Supreme Court decisions, limiting the court’s jurisdiction or filling the court, Bateman said.

“This is how Congress can now more effectively play its constitutional role as watchdog and interpreter of the Constitution,” Bateman said. “But I expect to see a flurry of Article V amendments, and I expect most of them to indicate a lack of seriousness on the part of Congress.”

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