Newspaper article

Constitutional Amendments So Far: Most Have Been for the Better

Newspaper article

Constitutional Amendments So Far: Most Have Been for the Better

Article excerpt

One in a series of articles. You can read the whole series here.

As I mentioned in closing yesterday, the Constitution has been successfully amended 27 times. (Major trivia genius points to anyone who can describe the 27th Amendment. Answer revealed below.)

Overall, the amendments have been for the better, some of them very much better. They have advanced rights, liberties and greatly increasing the democratic content of our system. They have tweaked the governmental structure system for the better but not altered it much and done nothing about the many-veto-points problem.

In his book (which I cited yesterday), "The Constitution of the United States of America; A contextual analysis," Harvard Law Professor Mark Tushnet offered an overview of the amendments, from which I borrow below as I try to support yesterday's concluding statement that, taken together, the 27 amendments amount to less fundamental change than meets the eye. Tushnet sorted the amendments into categories:

The Bill of Rights

The first 10 amendments, which we collectively refer to as the Bill of Rights, can reasonably be understood as part of the original Constitution. I've told the tale before. The Framers talked about whether to include such a list of basic rights of individuals and states that the federal government must respect. They decided against it, and then ended up having to agree during the ratification debates to add a Bill of Rights by amendment. James Madison, a leader of both the Constitutional Convention and the first House of Representatives, fulfilled the promise.

That first Congress referred 12 amendments to the states. Ten were promptly ratified, including those establishing freedom of speech, press and religion (all three of which were bundled into what became the First Amendment).

Most of what we consider to be our "constitutional rights" are in those 10 amendments. We suffer sometimes from their ambiguity, much of which arises from the passage of time. The Bill of Rights says that the government needs a warrant to search your home but the Framers didn't anticipate the possibility that a 21st century GPS tracker surreptitiously placed on a suspect's car could also invade privacy. The Supremes had to decide whether it did (and they decided it did).

OK, that's 10 of the 27 amendments.

The Reconstruction Three

Aside from the first 10, the three other greatest amendments are the 13th (abolishing slavery), 14th (requiring states to grant "equal protection of the laws" to all citizens, which had a lot to do with forcing the former slave states to respect the rights of the freed slaves) and the 15th (granting voting rights to the freed slaves and other non-whites).

The 14th was so big some analysts have said it became almost a whole new constitution. Although the Supreme Court wobbled on it in the 1890s, the "equal protection" clause became the basis of the landmark civil rights decisions of the 20th century, covering not only the equal rights of the freed slaves but eventually (slightly less) equal rights of women. Cases now in the pipeline will allow the Supreme Court to decide whether equal protection might mean equal rights to marriage for same-sex couples. The 14th Amendment also applied the doctrine of "due process" to the states. Before the Civil War, most of the rights outlined in the Bill of Rights were binding only on the federal government. Using the 14th, the court gradually "incorporated" most of the Bill of Rights into guarantees against state action as well.

The three Reconstruction amendments bear a slight procedural stain, since they were pushed through under the coercion of the federal occupation of the southern states in the aftermath of the Civil War. None of them could have been ratified in that period if the slaveocracy still controlled the southern states. Those states would not have approved them and would have had the numbers to block them.

Of course, by my lights these actions were more than justified. …

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