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Sunstein: Now who wants to amend the Constitution?
First Published Jun 03 2014 06:28 am • Last Updated Jun 03 2014 06:28 am

We are in the midst of a shift in political thinking about constitutional amendments. Nancy Pelosi, the House minority leader, is among many progressive thinkers now promoting constitutional change — in her case, to allow Congress to restrict corporate spending on political campaigns. Former Supreme Court Justice John Paul Stevens, in a new book, calls for no fewer than six constitutional amendments, involving not only campaign finance but also gun control, capital punishment, political gerrymandering, sovereign immunity and federalism.

Yet, for decades, constitutional change was something championed more by conservatives than by liberals. What’s going on? The recent proposals can be illuminated by the founding generation’s debates about constitutional change, which sharply divided James Madison and Thomas Jefferson. Where Madison favored constitutional stability and distrusted popular passions, Jefferson welcomed fundamental rethinking by We the People.

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Writing in 1788, Madison acknowledged that "the people are the only legitimate fountain of power." But he thought that constitutional change should be reserved for "great and extraordinary occasions." He insisted that "frequent appeals would, in a great measure, deprive the government of that veneration which time bestows on every thing, and without which perhaps the wisest and freest governments would not possess the requisite stability."

The far-seeing Madison believed that if we want people to venerate our constitutional order, we will need an old rather than a new constitution, and we should avoid a lot of amendments.

He was even more concerned about populism — the "danger of disturbing the public tranquillity by interesting too strongly the public passions." Madison feared that amendments would disturb, rather than maintain, "the constitutional equilibrium of the government."

Jefferson’s view could not have been more different. In a 1789 letter to Madison, he argued that "no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation." Every constitution, he held, "naturally expires at the end of 19 years. If it be enforced longer, it is an act of force, and not of right."

In 1816, specifically rejecting Madison’s hope for veneration, Jefferson lamented, "Some men look at constitutions with sanctimonious reverence, and deem them like the arc of the covenant, too sacred to be touched." He feared a situation in which people would "ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment."

Trying to humanize the founding generation, he said, "It was very like the present, but without the experience of the present." When "new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times."

"The dead," he contended, "have no rights."

Since the 1950s, progressives have often made Madisonian arguments in defense of their favorite Supreme Court decisions (including Roe v. Wade). Frequently opposing constitutional change, they have emphasized the risks of public passions, endangering what they see as fundamental rights, and they have drawn directly on Madison’s argument for constitutional stability.


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Meanwhile, conservatives have sounded more Jeffersonian. Stressing the importance of democratic self-rule, many have supported amendments to allow state governments to forbid abortion and flag burning, to bar courts from making states recognize same-sex marriage, and to allow school prayer.

To be sure, neither side has been consistent. With respect to the Equal Rights Amendment, which would guarantee equality on the basis of sex, progressives have sounded like Jefferson and conservatives like Madison. As noted, the cause of constitutional change has recently been taken up mostly by progressives.

Who’s right, Madison or Jefferson? In the abstract, there are strong arguments to be made for Jefferson. If a nation’s constitution has significant flaws, and if circumstances change, severe restrictions on amendments look less sensible. For populists, who welcome rather than fear "public passions," Jefferson points in the right directions, especially when decisions of the Supreme Court, like those restricting campaign finance regulation, are questionable on democratic grounds.

Of course, Madison did not want to freeze the Constitution for all time. Article V creates a process for amending it, and although that process is hard to navigate, 27 amendments have been ratified (including the 10 provisions of the Bill of Rights). With respect to campaign finance regulation, there is a legitimate argument for a 28th, designed to reduce the corrosive effect of money on our capacity for self-rule.

In the scope of U.S. history, however, Madison has proved the wiser. In part because of its original design, and in part because of judicial interpretations, the Constitution combines stability with flexibility. Most of the time, We the People have been able to respond to changing values and circumstances without changing the founding document.

In seeking to reserve amendments to "great and extraordinary occasions," Madison got it right.

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Cass R. Sunstein, the former administrator of the White House Office of Information and Regulatory Affairs, is a professor at Harvard Law School and a Bloomberg View columnist.



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