The Political Implications of Amending Clauses
Levinson, Sanford, Constitutional Commentary
Imagine two written constitutions.(1) One sets out pofitical structures and governmental empowerments and limitations; it concludes with a clause saying: "Anything in this constitution may be changed by the passage of ordinary legislation as spelled out in this constitution." To take the best known example, at least to Americans, this would allow change in the case of the United States Constitution by agreement of majorities in both houses of Congress and assent by the President or by a twothirds vote in each house overriding a presidential veto. Our second constitution comes to a radically different conclusion: "[This] fundamental constitution[ ] ... shall be and remain the sacred and unalterable form and rule of government . . . forever."(2) What can one say about these two constitutional schemes?
As to the first, one might be tempted to say that the polity described really doesn't have a "constitution" at all, at least if a constitution" is in some ways supposed to stand "above" and in some sense even "outside" the everyday system of ordinary political decisionmaking. Thus Mark Tushnet has recently written that "[p]erhaps some degree of institutional stability is required for a system to warrant the name constitutional, which suggests that it should not be too easy to amend all of a constitution's provisions, or perhaps any of its basic institutional prescriptions."(3) From this perspective, then, the first "constitution" is basically an initiating statute that is thoroughly "inside" the ordinary political order.
It is "inside" in a double sense: First, its mechanism for change differs not at all from the standard-form politics of legislation. Secondly, only those already inside the political system - i.e., elected officials - participate in the decision-making process, a point to which I shall return later. To be sure, even this constitution might in fact be difficult to change insofar as ordinary legislation is itself difficult to pass, as is the case in the notoriously complex system established by the United States Constitution, with its bicameral legislature and independent role for the President (not to mention the political implications of federalism and consequent hindrances to the establishment of a truly united national party system). But one can easily imagine alternatives to our present political structure, which has, indeed, been adopted by no other country in the world. One would, for example, predict both more legislation and more amendment in unicameral than in bicameral systems; similarly, one assumes that passage would be easier if the president (or monarch) played no role, especially when the formal system, as in the United States or France, for example, tolerates the possibility of an executive and legislature controlled by different political parties.
Perhaps even this "minimalist" constitution might have some special prestige because of the stature of its authors and the concomitant cultural hesitation to amend their handiwork. There is no logical reason why it could not receive the "veneration" thought by James Madison to be so important to the constitutional enterprise,(4) although, as an empirical matter, it may be that such "veneration" is, to some extent, a function of the difficulty of amendment. Cognitive dissonance theory might predict, for example, that one will tend to adjust and even find merit in structures that are in fact difficult to change, and the absence of difficulty might lead to a reduced level of affective commitment.
In any event, this hypothesized constitution presents no special obstacles to its own change. A bicameral system could, for example, become unicameral so long as both houses agreed to the change, the presidency could simply be abolished and replaced with a prime minister drawn from the legislature, and so on. Should we discover, after a suitable passage of time, that this constitution had remained unchanged we would, I think, be entitled to offer the lack of change as evidence of very high satisfaction, at least on the part of ruling elites, in regard to the original scheme. …