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August 15, 2012

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Every proposed constitutional amendment should pass five analytical tests:

     1.     The Suitability Test: Is the proposal suitable for inclusion in the Constitution?

This test is not about the substance or merits of a proposed constitutional amendment, but whether it raises the broader concern of James Madison in Federalist No. 49 that frequent constitutional changes would “deprive the government of that veneration which time bestows on everything, and without which perhaps the wisest and freest government would not possess the requisite stability.”  For Madison, the amendment process was best reserved for “certain great and extraordinary occasions.”  Determining when a “great and extraordinary occasion” has arisen requires us to ask (1) whether the problem will remain important to future generations rather than of immediate concern to the generation seeking its adoption; (2) whether the proposal seeks to achieve a particular policy or partisan result instead of (i) addressing a systemic or structural problem or (ii) expanding individual political or civil rights; and (3) whether the problem can, as a practical or legal matter, be addressed by statutory, executive, or other (non-constitutional) means.   The paradigm example of a constitutional amendment that failed the suitability test is the 18th Amendment, which sought to impose alcohol prohibition on a nation caught up in the fervor of “progressive” reform.  (Although to be fair, the advocates of alcohol prohibition at least recognized that such prohibition required a constitutional amendment, unlike the drug prohibitionists of today.)

2.     The Policy Test: Is the proposal good policy?

This test is about the proposal’s substance or merits.   The suitability test will eliminate most proposed amendments, but assuming that the problem being addressed is serious enough to quality as a “great and extraordinary occasion”, is the proposal itself the best solution for actually solving (or at least diminishing) the problem?  Answering this question requires us to ask searchingly what result we are trying to achieve and whether this result is consonant with the moral and political values that we want to see prevail.  It is also a matter of judgment as to the costs of success, for we must never forget the law of unintended consequences should we actually achieve the result we are seeking.  Again the 18th Amendment is a cautionary tale.  Attempts to restrict the rights of our fellow citizens are almost always misguided, but when they lead so directly to massive crime and corruption, no benefit from such a proposed amendment can justify its ratification.

     3.     The Enforcement Test: Is the proposal self-executing or otherwise enforceable?

This is the test that is most often overlooked or intentionally ignored.  Some amendments are indeed self-executing, such as the 22nd (presidential term limits), or readily enforceable by the courts, such as the 24th (no poll taxes).  But Members of Congress often propose or co-sponsor amendments for their symbolic value to buttress their political standing or insulate them from political pressure, knowing full well that the amendment cannot or will not be enforced if ever ratified.  Here the paradigm is the so-called Balanced Budget Amendment (BBA) that has been periodically approved by the House of Representatives and which in March 1995 failed by a single vote in the Senate.  For decades I have been waiting for BBA supporters to explain how it would be enforced, but the only responses that they have ever given are (1) “fidelity to the Constitution” (i.e. Members of Congress will only pass balanced budgets because they swear an oath to the Constitution) and (2) super-majority voting to raise the debt ceiling.  Leaving aside the various loopholes in the BBA for war, national security, and 3/5th majorities, fidelity to a constitutional oath is not self-executing.  The more likely scenario is that lawmakers will claim to have honored their oaths by voting against spending which they personally oppose, yet fail to reach an overall consensus on legislation that actually balances the budget.  As for using the debt ceiling to enforce fiscal discipline, we were reminded how vacuous this idea was last summer when Congress raised the debt ceiling for the 75th time since March 1962 (Congressional Research Service Report RL31967, April 5, 2011

     4.     The Drafting Test: Has the proposal been properly drafted to achieve its policy goals?

This is perhaps the trickiest test to apply and meet because it not only has a practical component but an aesthetic one as well.  A constitutional amendment must accomplish the intended goal in language that is as clear, simple, and direct as possible, but without opening the door to judicial reinterpretations that twist the original meaning so as to gut the amendment in whole or in part.  We have still not recovered from the 1873 Slaughterhouse Cases that effectively rewrote the Privileges or Immunities Clause to make it a dead letter in all but a few uncontroversial instances of federal or national citizenship.  Drafters can seek to protect themselves from subsequent “judicial amendments” with detailed provisions, but this can result in wording akin to the prolixity of the tax code.  Even then there is no guarantee that the original meaning will be honored.  The framers of the P&I Clause could never list all of our “privileges or immunities”, any more than the framers of the 9th Amendment could list all of our unenumerated rights.  There is also the problem of language changing or simply being forgotten over time.  This concern can sometimes be addressed by adding specifically defined terms to an amendment, but if a court is determined to achieve a certain result, there is very little that can be done, at least in the short term.  Just ask Chief Justice Roberts what a “tax” (or “direct tax”) is for constitutional purposes.

5.     The Political Test: Is the proposal politically viable?

Lastly, it is important to remember that proposed amendments must achieve deep and widespread political support to run the proposal and ratification gauntlet under Article V of the Constitution.  The proposal must therefore have the potential for political viability, which in turn means that it must eventually gain bipartisan support.  To be sure, many of our greatest constitutional provisions were not seen as politically viable when first proposed.  The Civil War Amendments (13th, 14th, and 15th) required, well, a civil war, and the 19th Amendment required decades of political activism to achieve women’s suffrage.  Still, most of us have limited time and energy, so it is best to focus on proposals that are serious and significant, yet do not favor any political party or which are so ideologically motivated as to ensure failure.  One of my favorite proposals would change Tax Day from April 15 to the first Monday in November, but this should not be the focus of one’s Article V efforts given the enormity of our fiscal problems and the need to make spending restraint by the federal government our first priority.


  1. August 03, 2014 at 1:28 pm, Charles Novitsky said:

    Perhaps we can include “inheritability” in the qualifying criteria. This is the concept that a restrictive contract, or compact such as the “Constitution”, can never have an amendment, no matter how just, outside of the scope and powers in the original document.

    This essentially makes 95% of all previous amendments invalid, and illegal.

    Nothing new in my idea, except naming the principle of legal lineage.



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