As we draw closer to holding the first-ever Article V Convention of the States for proposing amendments to the U.S. Constitution, increased attention has focused on specific amendments which may be proposed.
Ratified amendments to the U.S. Constitution are rare when compared to the number introduced. Consider this observation from a 2018 article from the Pew Research Center:
Of the roughly 12,000 amendments proposed since the Constitutional Convention, only 33 have gone to the states for ratification, and just 27 have made it all the way into the Constitution.
With that in mind, it would be helpful to consider these 7 guidelines to produce viable proposed amendments:
- Regulates Government, Not Private Activity
- Germane to the Application
- Structure Over Substance
- Avoid Expansive Language
- Real World Experience
Regulates Government, Not Private Activity
The purpose of the U.S. Constitution is to establish rules and procedures which apply to government. Its purpose is not to regulate private activity. We have voluminous (too many) laws and regulations which govern private activity.
Any proposed amendment must focus on controlling government. An example of an amendment that strayed from this principle is the 18th Amendment, which instituted prohibition:
Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all the territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.
This error was corrected when the 21st Amendment repealed the 18th Amendment and left the control of this private activity to enacted law:
Section 1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed.
Section 2. The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.
Georgetown law professor and Convention of States endorser Randy Barnett said it best in his book, Our Republican Constitution:
[The U.S. Constitution] "provides the law that governs those who govern us and it is put in writing so it can be enforced against the servants of the people, each of whom must swear a solemn oath to obey “this Constitution.”
Germane to the Application
A proposed amendment must be germane to the application for the Article V convention. This is to say that the proposed amendment must fit into one of the three topics described in the Convention of States application for an Article V convention. These three subject matter areas are:
- Impose fiscal restraints on the federal government
- Limit the power and jurisdiction of the federal government
- Impose term limits on federal officials
If a proposed amendment does not fit into one of these categories, it cannot be considered at an Article V convention under the call of a Convention of States application.
An example of a proposed amendment that would not be germane would be a proposal to abolish the 2nd amendment. Such a proposal does not place a fiscal restraint on the federal government. Nor does it limit the power or jurisdiction of the federal government. Finally, it has nothing to do with term limits. It is, therefore, not germane and cannot be considered.
Most of the existing amendments to the U.S. Constitution are brief. In terms of word count, the 26th Amendment is the median with a count of 52 words. This means that half of the 27 amendments are less than 52 words long. In fact, two-thirds of the existing amendments are less than 100 words long. The shortest is the 9th Amendment at 21 words, and the longest is the 14th Amendment at 433 words. A proposed amendment of less than 100 words would be desirable, and less than 50 words - even better.
As an example of a proposed amendment that adheres to the rule of brevity, consider this:
All bills shall be limited to a single subject, clearly stated in the title.
At 14 words, this proposed amendment could displace the 9th Amendment as the shortest, but it would be very powerful in restraining the federal government.
Structure Over Substance
Substance has to do with what an amendment says can be done or not done. Structure has to do with how something is done. These concepts can best be understood through an example.
Consider two forms of a proposed balanced budget amendment:
Expenditures shall not exceed revenue, except in the case of emergency.
The public debt shall not be increased except upon a recorded vote of two-thirds of each house of Congress.
The first is a substantive proposed amendment, the second is structural.
The first creates the ambiguity of an “emergency.” What constitutes an emergency? Who declares the start and end of an emergency? When it comes to the federal government, there is always some kind of active emergency. In fact, expenditures exceeding revenue is often considered an emergency.
If the federal government violated this proposed amendment, what would be the remedy? Would someone have to take the issue to court? How would the excess spending be undone?
The second is structural. It is self-enforcing. Requiring a supermajority of both houses would effectively remove the ambiguity of an “emergency” in the substantive version of a proposed balanced budget amendment.
Avoid Expansive Language
Expansive language has been an ever-present problem in constitutional interpretation. The commerce clause and the general welfare clause are examples of language that have been expanded to fit the desired meaning of the federal government.
Although it is impossible to predict how the language of a particular proposed amendment could be expanded to produce an unintended result, the potential for expansive interpretation should be front of mind when drafting a proposed amendment.
Here is an example of a proposed amendment from 1924 that received the requisite two-thirds vote in both houses of Congress but was never ratified:
Section 1: The Congress shall have the power to limit, regulate and prohibit the labor of persons under eighteen years of age.
Section 2: The power of the several states is unimpaired by this article except that the operation of State laws shall be suspended to the extent necessary to give effect to legislation enacted by the Congress.
Phrases like "limit, regulate and prohibit" and "to the extent necessary" seem ripe for an expansive interpretation.
A solution to the problem of expansive language is to use legal terms of art when possible. A term of art is a word or phrase which has a somewhat fixed legal meaning. You can find a more detailed definition here. You can also consult a legal encyclopedia of constitutional terms of art.
Real World Experience
Amending the U.S. Constitution is a serious matter. It is not a laboratory for experimenting with untested ideas. Real-world experience with proposed amendments can be important to avoid unintended consequences.
We have two sources of real-world experience with respect to proposed amendments:
- The U.S.Constitution prior to an existing amendment
- State Constitutions
Returning the U.S. Constitution to a previous state by repealing an existing amendment would fit into the preference for real-world experience. Consider the 17th amendment, which changed the selection of U.S. Senators from state legislatures to popular elections.
If the 17th Amendment was repealed, we would return to the selection of U.S. Senators by state legislatures. We have over a century of real-world experience with selecting Senators in this way, so we should have a good idea of the positives and negatives of such a change.
State constitutions are ripe with possibilities for proposed amendments to the U.S. Constitution. Most state constitutions include provisions for balanced budgets, single-subject bill requirements, prohibitions on subsidies, and a wide variety of term limits. All of these potential proposed amendments to the U.S. Constitution provide a rich history of real-world experience at the state level.
An example of a proposed amendment that lacks real-world experience was proposed in 1878:
An Executive Council of Three should replace the office of President
It would make sense to first replace a state governor with an executive council of three and see how that works out before considering replacing the president with an executive council of three.
Finally, a proposed amendment must be ratifiable, which is to say that it must have broad support. It will take 38 states to ratify any proposed amendment. The more support a proposed amendment has at the Article V convention for proposing amendments, the more likely it will stand the test of ratification by 38 states.
There are, in fact, six proposed amendments to the U.S. Constitution which have so far proven unratifiable. They are:
- Article 1 of the original Bill of Rights
- Anti-Title Amendment
- The Slavery Amendment
- The Child Labor Amendment
- The Equal Rights Amendment (ERA)
- The Washington DC Voting Rights Amendment
Drafting Better Amendments
As we draw closer to the inevitable first-ever Article V convention for proposing amendments to the U.S. Constitution, there will be an ever-increasing number of individuals drafting proposed amendments for consideration at the convention. Applying these 7 guidelines to the drafting process can result in higher-quality proposed amendments.
Click here to view a recording of a webinar featuring constitutional attorney and COS co-founder Michael Farris providing his insights on how to craft a constitutional amendment.