Two hundred and fifty years after Americans declared independence from Britain and began writing the first state constitutions, it’s not the Constitution that’s dead. It’s the idea of amending it. “The whole purpose of the Constitution,” Scalia once said, “is to prevent a future society from doing what it wants to do.” This is not true. One of the Constitution’s founding purposes was to prevent change. But another was to allow for change without violence. Amendment is a constitution’s mechanism for the prevention of insurrection—the only way to change the fundamentals of government without recourse to rebellion. Amendment is so essential to the American constitutional tradition—so methodical and so entirely a conception of endurance through adaptation—that it can best be described as a philosophy. It is, at this point, a philosophy all but forgotten.
The philosophy of amendment is foundational to modern constitutionalism. It has structured American constitutional and political development for more than two centuries. It has done so in a distinctive, halting pattern of progression and regression: Constitutional change by way of formal amendment has alternated with judicial interpretation, in the form of opinions issued by the U.S. Supreme Court, as a means of constitutional revision.
This pattern has many times provided political stability, with formal amendment and judicial interpretation as the warp and weft of a sturdily woven if by now fraying and faded constitutional fabric. But the pattern, which features, at regular intervals, the perception by half the country that the Supreme Court has usurped the power of amendment, has also led to the underdevelopment of the Constitution, weakened the idea of representative government, and increased the polarization of American politics—ultimately contributing, most lately, to the rise of a political style that can only be called insurrectionary.
The U.S. Constitution has one of the lowest amendment rates in the world. Some 12,000 amendments have been formally introduced on the floor of Congress; only 27 have ever been ratified, and there has been no significant amendment in more than 50 years. That is not because Americans are opposed to amending constitutions. Since 1789, Americans have submitted at least 10,000 petitions and countless letters, postcards, and phone and email messages to Congress regarding constitutional amendments, and they have introduced and agitated for thousands more amendments in the pages of newspapers and pamphlets, from pulpits, at political rallies, on websites, and all over social media. Every state has its own constitution, and all of them have been frequently revised and replaced. One delegate to a 19th-century constitutional convention in Missouri suggested that a state constitution ought to be rewritten every 14 years on the theory that every seven years, “every bone, muscle, tissue, fibre and nerve matter”—every cell in the human body—is replaced, and surely, in twice that time, every constitution ought to be amended too.