CQR Re-Examining the Constitution

Res earc her Published by CQ Press, an Imprint of SAGE Publications, Inc. CQ www.cqresearcher.com Re-examining the Constitution Are major changes needed?

he 225th anniversary of the U.S. Constitution finds Americans in a less celebratory mood than they were during the Bicentennial a quarter-century ago. T The Constitution’s intricate system of checks and balances and separation of powers is sometimes blamed for the political gridlock in Washington. Some of the basic structural fea - tures are also viewed as outmoded, such as the Electoral College, The Declaration of Independence and Constitution are preserved at the National Archives in Washington. equal representation for each state in the Senate and life tenure As the Constitution’s 225th anniversary approaches, Americans appear more divided about the nation’s for Supreme Court justices. And many conservatives and libertarians, founding document than they were 25 years ago. including the Tea Party movement, complain that the federal gov - I ernment has taken on powers beyond what the Constitution was N intended to allow. Simmering discontent on both the left and the THIS REPORT S THE ISSUES ...... 743 right has led to efforts to force Congress to call a convention to I BACKGROUND ...... 750 propose constitutional amendments. Public opinion polls indicate, D CHRONOLOGY ...... 751 however, that most Americans view the Constitution favorably. E CURRENT SITUATION ...... 756 CQ Researcher • Sept. 7, 2012 • www.cqresearcher.com AT ISSUE ...... 757 Volume 22, Number 31 • Pages 741-764 OUTLOOK ...... 760 RECIPIENT OF SOCIETY OF PROFESSIONAL JOURNALISTS AWARD FOR BIBLIOGRAPHY ...... 762 EXCELLENCE N AMERICAN BAR ASSOCIATION SILVER GAVEL AWARD THE NEXT STEP ...... 763 RE-EXAMINING THE CONSTITUTION CQ Re search er

Sept. 7, 2012 THE ISSUES SIDEBARS AND GRAPHICS Volume 22, Number 31 • Should the structure of The Framers’ Constitution: MANAGING EDITOR: Thomas J. Billitteri 743 Congress under the Con - 744 ‘A More Perfect Union’ [email protected] stitution be changed? Seven articles lay out the ASSISTANT MANAGING EDITOR: Kathy Koch • Should the election of structure and powers of the [email protected] national and state govern - CONTRIBUTING EDITOR: Thomas J. Colin the president under the ments. Constitution be changed? [email protected] • Should the tenure of ‘Leave It Alone’ ASSOCIATE EDITOR: Kenneth Jost Supreme Court justices 745 Most Americans view the STAFF WRITER: Marcia Clemmitt under the Constitution be Constitution favorably. changed? CONTRIBUTING WRITERS: Peter Katel , 746 The Bill of Rights: Barbara Mantel, Jennifer Weeks BACKGROUND Protections and Prohibitions DESIGN /P RODUCTION EDITOR: Olu B. Davis The amendments are largely An Imperfect ‘Miracle’? applicable to state and local ASSISTANT EDITOR: Darrell Dela Rosa 750 The Constitution grew out governments. FACT CHECKER: Michelle Harris of the Framers’ ability to Most Dislike Electoral craft compromises. 748 College System A majority of Americans favor Progressive Eras election of the president by 754 In its second century, the popular vote. Constitution became an An Imprint of SAGE Publications, Inc. instrument of sweeping Chronology VICE PRESIDENT AND EDITORIAL DIRECTOR, changes. 751 Key events since 1776. HIGHER EDUCATION GROUP: Michele Sordi Rewriting the Constitution: Constitution in Turmoil 752 DIRECTOR, ONLINE PUBLISHING: 755 Partisan polarization and Some Modest Proposals Online readers and scholars Todd Baldwin public discontent have weigh in. marked the Constitution’s third century. Copyright © 2012 CQ Press, an Imprint of SAGE Pub - 755 The ‘Second Constitution’ lications, Inc. SAGE reserves all copyright and other Three post-Civil War amend - rights herein, unless pre vi ous ly spec i fied in writing. ments had a profound effect No part of this publication may be reproduced CURRENT SITUATION on the nation. electronically or otherwise, without prior written permission. Un au tho rized re pro duc tion or trans mis- Convention Talk At Issue 756 757 sion of SAGE copy right ed material is a violation of Interest in amending the Should a constitutional con - federal law car ry ing civil fines of up to $100,000. Constitution is growing, vention be called? but changes are unlikely. CQ Press is a registered trademark of Congressional Quarterly Inc. OR URTHER ESEARCH Constitution Talk F F R CQ Researcher (ISSN 1056-2036) is printed on acid- 759 free paper. Pub lished weekly, except: (March wk. 5) Americans know little For More Information about the nation’s found - 761 Organizations to contact. (May wk. 4) (July wk. 1) (Aug. wks. 3, 4) (Nov. wk. ing document. 4) and (Dec. wks. 3, 4). Published by SAGE Publica - Bibliography tions, Inc., 2455 Teller Rd., Thousand Oaks, CA 91320. 762 Selected sources used. Annual full-service subscriptions start at $1,054. For OUTLOOK pricing, call 1-800-834-9020. To purchase a CQ Re - The Next Step searcher report in print or electronic format (PDF), The ‘Durable’ Constitution 763 Additional articles . visit www.cqpress.com or call 866-427-7737. Single 760 Only 27 amendments have reports start at $15. Bulk purchase discounts and been passed in 225 years. Citing CQ Researcher electronic-rights licensing are also available. Periodicals 763 Sample bibliography formats. postage paid at Thousand Oaks, California, and at additional mailing offices . POST MAST ER: Send ad dress chang es to CQ Re search er , 2300 N St., N.W., Suite 800, Wash ing ton, DC 20037. Cover: Getty Images/Alex Wong

742 CQ Researcher Re-examining the Constitution BY KENNETH JOST

Then and even today, Levin - THE ISSUES son’s book stirred debate in legal and academic circles, re - ours at the National spectful but often negative. Polls Constitution Center in show that, despite controver - T Philadelphia end in sies, the Constitution still holds Signers’ Hall, where visitors a special place in public opin - can stand shoulder to shoul - ion as well. ( See poll, p. 745. ) der with life-size statues of Yet, as the Constitution’s mile - 42 of the delegates who as - stone 225th anniversary on sembled in the summer of Sept. 17 approaches, Ameri - 1787 to rewrite the govern - cans appear more ambivalent ing charter for the infant re - or divided about the Consti - public. There they are: tution than they were 25 years George Washington, presi - ago. During the Bicentennial, dent of the four-month-long the only prominent dissent convention; Benjamin came from Supreme Court Jus - Franklin, the elder states - tice Thurgood Marshall, who a l l man; James Madison, the i criticized the Constitution for v

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young politician later d perpetuating slavery. o

dubbed “the father of the m “We’re very much divided as o S Constitution”; Roger Sherman, a nation about what we see as p i

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promise between large and s ernment,” says David Boden - e g

small states; and 38 other a hamer, a professor of history at m I

delegates representing all of Indiana University’s School of y t t

the 13 states except tiny e Liberal Arts in Indianapolis and G Rhode Island, including the Demonstrators at the Supreme Court unfurl a banner author of a more celebratory three who refused to sign. * depicting the Constitution on Oct. 20, 2010, to protest book, The Revolutionary Con - Visitors to the center learn the court’s Citizens United decision allowing unlimited stitution. “We’re forced to think of the dangers besetting the corporate spending in political campaigns. Some liberals once again about what those new nation under the exist - want to amend the Constitution to undo the fundamental assumptions of controversial decision. ing Articles of Confederation: the relationship of the govern - threat of foreign invasion, eco - ment to the individual are.” 4 nomic rivalries between states and ment everywhere.” Millions of visitors “We have in this country people, widespread unrest and disorder. T he have done so since the independent, on both sides, feeling that the Consti - delegates to the so-called Federal Con - publicly and privately supported cen - tution has let them down,” says Gloria vention had gathered to revise the char - ter opened on July 4, 2003. But when Browne -Marshall, an associate professor ter but ended by replacing it with some - University of Texas law professor and of constitutional law at John Jay Col - thing new and groundbreaking: a constitutional scholar Sanford Levin - lege in New York City. “When it’s there “Constitution for the United States of son came to Philadelphia for the cen - for them, they think the Constitution America.” 1 (See p. 744. ) ter’s grand opening, he decided not is a wonderful document. And when Once in Signers’ Hall, visitors are to sign. it isn’t, they think the Constitution needs invited to sign their names alongside Levinson balked because he thinks to be amended.” a reproduction of the Constitution — the Constitution is out of date, given Debates about the Constitution “in support of constitutional govern - “our own twenty-first century norms.” have topped the political agenda ever As he relates in his book The Unde - since the closely contested 2000 pres - * In all, 70 delegates were selected to repre - mocratic Constitution , he hopes for “a idential race between Republican sent the 12 participating states at the con - national conversation” about the Con - George W. Bush and Democrat Al Gore vention; 55 of those actually attended sessions; stitution in place of the automatic ac - gave the nation a crash course in the only 39 signed the final document. ceptance of it for current times. 2 Continued on p. 745

www.cqresearcher.com Sept. 7, 2012 743 RE-EXAMINING THE CONSTITUTION

The Framers’ Constitution: ‘A More Perfect Union’ The Constitution drafted in 1787 began with a “Preamble” followed by seven articles. The first three outlined the structure and powers of Congress, the president and the judiciary. The next three pertained to the powers and responsibilities of the states, the amendment process and the powers of the national government. The final article set out the requirements for ratification. Here are some of the major provisions: Preamble “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, pro vide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” Article I Vests “all legislative Powers herein granted” in “a Congress,” to consist of a Senate, with two members from each state, and a House of Representatives, with members apportioned by population; age, residency requirements set out; slaves to be counted as three-fift hs of a person for apportionment. Requires approval by each chamber of Congress and signature by president for enactment of law; if “returned” by president, bill may be become law after two-thirds vote in each chamber. Makes each chamber exclusive judge of qualifications and elections of members; no member to be “questioned in any other Place” f or “any Speech or Debate.” Grants Congress so-called “enumerated” powers (sec. 8), including power to tax and spend, regulate interstate and foreign comme rce, declare war, raise and support armies and “make all Laws . . . necessary and proper” for executing “foregoing Powers.” Bars restriction on importation of slaves until 1808. Bars states from entering any treaty with another country or laying duties on imports or exports without consent of Congress. Article II Vests “the executive Power” in “a President of the United States of America.” Prescribes election of president by “electors” to be “appoint[ed]” by each state as directed by legislature; each state to have number of electors equal to the state’s “whole Number of Senators and Representatives;” meeting of electors, counting of ballots detailed ; election by House of Representatives, with one vote per state, if no candidate has majority. Makes president “commander in chief” of Army and Navy. Grants president power to nominate, with “Advice and Consent” of Senate, ambassadors, judges and (most) “Officers of the United States.” Permit removal of president and vice president after impeachment (by House) and conviction (by Senate) of “Treason, Bribery, or other high Crimes and Misdemeanors.” Article III Vests “the judicial Power” in “one supreme Court” and inferior courts to be created by Congress; judges to hold offices “during good Behaviour;” compensation not to be diminished. Extends judicial power to, among others, cases arising under Constitution, federal laws, treaties; cases where United States is party; controversies between two states or between citizens of different states; Supreme Court to have original jurisdiction in limite d number of cases, appellate jurisdiction in all others. Article IV Requires states to give “Full Faith and Credit” to official actions of other states, recognize “all Privileges and Immunities” o f citizens of other states and extradite persons accused of crime in another state upon request of executive authority of that state. Requires states to deliver escaped slaves upon claim by owner. Permits admission of new states; no state to be divided or joined with another without consent of affected state or states and of Congress. Article V Permits amendments to be proposed by two-thirds vote of both houses of Congress or by a convention called for by two-thirds of the state legislatures; amendments effective when ratified by three-fourths of the states by legislatures or conventions as Congress directs. Bars until 1808 any amendment to restrict importation of slaves. Prohibits depriving any state of equal representation in Senate without state’s consent. Article VI Accepts all debts of states as “valid against the United States.” Makes the Constitution and laws and treaties of the United States “the supreme Law of the Land.” Bars any religious test for any office of the United States. Article VII Requires ratification by nine states to establish the Constitution “between the States so ratifying.”

744 CQ Researcher Continued from p. 743 those things tidy up the democratic Electoral College and the House of ‘Leave It Alone’ project in ways that make the project Representatives’ back-up role in the More than half of Americans say more aesthetically appealing, but I don’t event of a deadlock, as spelled out in the Constitution should be left think they change the system,” he says. the Constitution. 5 Bush came under Some constitutional scholars, on the alone, and two-thirds say it has a nearly continual criticism throughout other hand, flatly oppose any tinker - his eight years in the White House positive impact on life in the ing with the constitutional infrastruc - from liberals and libertarians for stretch - United States. Forty-three percent, ture. “What makes America exceptional ing presidential powers in what he however, think the Constitution is that we rejected a majoritarian form called the “global war on terrorism.” does not place enough restrictions of democracy in favor of a limited- President Obama and congressional on what government can do. power republic,” says Randy Barnett, Democrats have been under all but a professor at Georgetown Law School constant criticism from conservatives Which best describes your in Washington and a libertarian critic and libertarians for stretching the fed - view toward changing the of the federal government’s expand - eral government’s powers in the new Constitution? ing role since the 1930s. “I don’t favor health care law. Leave it alone 57% amending the Constitution to reverse Levinson broadly views what he Make minor changes 39% those structural features.” sees as the Constitution’s faults as Make major changes 3% Barnett, author of Restoring the Lost among the causes of the growing dis - Constitution , has his own ideas for content with politics generally and the Does the Constitution place too amending the Constitution, including lim - declining public confidence in all many or not enough restric - iting Congress’ powers under the Com - three branches of the federal govern - tions on what government merce Clause more in keeping with ment. “There is just generally a much can do? what he regards as the provision’s true greater level of dissatisfaction with the meaning. 7 Barnett played a major role Not enough 43% state of American politics,” Levinson in crafting the legal and intellectual ar - Right amount 33% says today. “What drives me crazy is gument behind the court challenge to Too many 15% the inability to engage in connecting Obama’s health care plan. Another of the dots to recognize that the Consti - his proposals would allow a vote by How do you rate the U.S. tution itself bears part of the blame.” legislatures in two-thirds of the states to Constitution in terms of how Some constitutional scholars agree. repeal a law passed by Congress. 8 it impacts life today? “There is a fairly general perception The Framers — as the delegates to that the constitutional structure that Excellent or good 67% the convention have come to be called we regarded as normal 25 years ago Poor 7% — included a procedure for amend - isn’t working,” says Glenn Reynolds, ments in Article V of the Constitution, a professor at the University of Ten - Source: Rasmussen Reports, June but it is difficult, more difficult than 2012, www.rasmussenreports.com/ nessee College of Law in Knoxville provisions in other countries’ govern - public_content/politics/general_politics/ and a conservative commentator on june_2012/57_say_constitution_should_ ing charters. Some experts see the dif - his Instapundit.com website and in be_left_alone ficulty as fostering stability. “Perhaps other media. it’s good not to amend it too easily,” Others say the concerns about dys - Levinson favors rewriting significant says Caroline Fredrickson, president of functional government stem more from provisions in each of the Constitution’s the American Constitution Society, a the political culture in Washington and first three articles dealing with Con - progressive advocacy group. partisan polarization nationwide than from gress, the president and the judiciary. Levinson complains that the pro - the Constitution. “I agree that the Con - Among other changes, Levinson would cedure used for all 27 amendments stitution is a deeply imperfect instrument, enlarge the Senate to give bigger states so far — proposals submitted by Con - but I don’t believe that the imperfections more senators, replace the Electoral gress to state legislatures for ratifica - are tightly tied to our current predica - College with direct popular election of tion — imposes a daunting impedi - ment,” says Akhil Reed Amar, a law pro - the president and limit the lifetime tenure ment in practice because members of fessor at Yale University in New Haven, of Supreme Court justices. Congress have little interest in or time Conn., and prolific author on constitu - Amar says he favors or could be for constitutional revision. He favors tional topics. 6 “I don’t see what dots open to some of those changes, but use of the second route set out in Ar - there are to be connected,” he adds. discounts their importance. “I think ticle V: a convention called by Con -

www.cqresearcher.com Sept. 7, 2012 745 RE-EXAMINING THE CONSTITUTION

gress when requested by two-thirds of The Bill of Rights: Protections and Prohibitions the states, with ratification required Congress and the states approved 10 amendments to the Constitu - from three-fourths of the states by their tion, known as the Bill of Rights, in the first two years of the new legislatures or specially called con - ventions. That idea draws mixed re - national government. Originally, the provisions applied only to the sponses from scholars, advocates and federal government, but the Supreme Court has now held almost all politicians. ( See “At Issue,” p. 757. ) of them applicable to state and local governments under the However difficult the amendment so-called incorporation doctrine. process may be, interest in constitu - tional tinkering appears to be spiking First Amendment in this anniversary year. The New York Prohibits any law “respecting an establishment of religion, or prohibiting Times compiled a diverse list of pos - the free exercise thereof;” protects freedom of speech and press; guaran - sible changes from various invited ex - tees right to “peaceably assemble” and to “petition the Government for perts this summer. The online maga - redress of grievances.” zine Slate drew a wider array of ideas when it threw the topic out for crowd Second Amendment sourcing. ( See sidebar, p. 752. ) Protects “right of the people to keep and bear arms.” Historian Carol Berkin finds no fault with the current interest in possible Third Amendment changes despite the laudatory account Prohibits quartering of soldiers in private homes during peacetime. of the convention in her book A Bril - liant Solution. 9 The Framers “would Fourth Amendment not have been upset if we changed Prohibits “unreasonable searches and seizures” of “persons, houses, the Constitution,” says Berkin, a pro - papers, and effects;” requires probable cause for warrants, which must fessor at Baruch College, City Univer - specify place to be searched and person or things to be seized. sity of New York. “These were ordi - Fifth Amendment nary men, and what makes them extraordinary is that they compro - Requires grand jury indictment (not incorporated against states); mised every day. They knew that they prohibits double jeopardy; establishes privilege against had to give up something in order to self-incrimination; requires due process; prohibits taking of private save the country.” property for public use except with “just compensation.” As Sept. 17 approaches, schools na - Sixth Amendment tionwide are required under a law passed in 2004 to provide educational pro - Protects, in all criminal prosecutions, right to “speedy and public trial” gramming that day on the history of by jury, with rights to be informed of charges, confront witnesses and be the Constitution. The Philadelphia cen - represented by counsel. ter is marking the anniversary with var - Seventh Amendment ious events, including its annual Liber - Protects right to jury trial in “suits at common law” (not applicable to ty Medal ceremony on Sept. 13; the states). 2012 awardee is Muhammad Ali, the former professional boxer, who is being Eighth Amendment honored as an “outspoken fighter for 10 Prohibits “excessive bail,” “excessive fines,” “cruel and unusual punishments.” religious and civil rights.” As these observances take place, here are some Ninth Amendment of the questions being discussed: Specifies that enumeration of rights “shall not be construed to deny or disparage others retained by the people.” Should the structure of Congress under the Constitution be changed? Tenth Amendment The Constitutional Convention came Provides that powers “not delegated to the United States . . . nor prohibited close to collapsing in June 1787 over . . . to the States” are “reserved to the States respectively, or to the people.” the structure of the legislative body for the new government. The Virginia

746 CQ Researcher Plan, favored by Madison and other sor Amar. A change, he says, might Levinson acknowledges the reasons strong nationalists, called for two make “a smallish difference.” Histori - supporters of state autonomy vis-à-vis houses of Congress with the number an Bodenhamer calls the Senate’s com - the federal government favor the of members in each chamber based position “a real structural flaw that in change. But he calls the idea of re - on each state’s population. Small some sense probably should be ad - turning to election of senators by state states, led by New Jersey’s delegation, dressed.” legislatures “remarkably stupid, guar - wanted a unitary legislature with one “I can’t figure out what damage it anteed to make the Senate even more vote per state, just as in the Articles has, the current system,” counters egregiously parochial than it is now.” of Confederation. Donald Lutz, a professor of philoso - At least four current Republican can - With each side having threatened phy at the University of Houston who didates for the Senate have signaled in - to pull out of the convention over the has studied national constitutions in terest in the idea. But even sympathetic issue, the Connecticut delegation — the United States and other countries. constitutional law experts acknowledge Roger Sherman and Oliver Ellsworth “It’s worked so well so far. What ex - that change is unlikely. “The 17th Amend - — offered the compromise that saved actly is broken except for some peo - ment weakened the states’ ability to re - the project: proportional representa - ple’s sensibilities?” sist the expansion of federal powers,” tion in the House of Representatives, Whatever the pros and cons, the writes John Yoo, a conservative law equal representation by state in the rule appears impossible to change professor at the University of Califor - Senate. With voting by states, the plan because of a specific provision nia-Berkeley and former Justice De - carried by a single vote, 5-4, with two agreed to at the convention that pro - partment official in the George W. Bush delegations split and New York dele - hibits depriving any state of its “equal administration. “The problem is that there gate Alexander Hamilton absent. 11 suffrage” in the Senate without the is no point to trying to fix this prob - More than two centuries later, the state’s consent. “No small state is going lem — an effort to amend the Consti - Connecticut Compromise remains the to vote to do that,” says Bodenhamer. tution will be fruitless.” 14 cornerstone of congressional architec - Levinson agrees. “That’s not going to University of Tennessee professor ture. But Levinson at the University of happen in my lifetime,” he says. “It Reynolds offers a more novel struc - Texas is one of many academics who probably won’t happen in my grand - tural change: a new, third house of say the rule giving each state two children’s lifetime.” Congress empowered only to repeal senators without regard to popula - Levinson has other complaints about existing federal laws. “Right now, there’s tion is utterly undemocratic. “Why the Senate — in particular, the cur - no body that has an incentive to re - should you be stuck to eternity with rent filibuster rule that, in operation peal laws,” he says. Levinson disagrees. a compromise that was explainable today, effectively requires a 60-vote ma - “We already have a third house of only because of political considera - jority for a bill to pass. Amar agrees. Congress,” he says. “It’s called the White tions then and that hasn’t worked out “The Senate is ungovernable at 60,” House, with its power to veto and, well?” he asks. he says. But Amar quickly notes that therefore, to shape legislation. Or In his book, Levinson illustrates the no constitutional amendment is need - some might say that the Supreme results of small states’ disproportion - ed to change the Senate rules. Court plays that role, on occasion.” ate voting power in the Senate. As Other constitutional changes in Con - one example, he quotes a study show - gress’ structure currently being discussed Should the election of the presi - ing that in 2005, the Senate could have seem almost as unlikely of adoption as dent under the Constitution be passed a bill with the votes of 51 Re - any change in the equal-vote rule. One changed? publican senators whose total votes proposal pushed by elements of the Tea Delegates to the Constitutional Con - amounted to less than 20 percent of Party movement and other states’ rights vention struggled to decide how to the total national vote “The equal-vote advocates is to repeal the 17th Amend - elect the president, who was to head rule in the Senate makes an absolute ment, which established direct election the executive branch of the new gov - shambles of the idea that in the Unit - of senators in place of election by state ernment. Popular election was pro - ed States the majority of the people legislatures as provided in the original posed but had scant support. Instead, rule,” Levinson writes. 12 Constitution. “Senators were emissaries delegates first voted in favor of elec - Indeed, full-throated defenses of of state government,” says Adam Freed - tion by the Senate. With persistent the equal-vote rule appear to be hard man, a conservative commentator and doubts about potential conflicts of in - to find among constitutional law ex - author of the recently published The terest, however, the convention referred perts. “I prefer a proportionally rep - Naked Constitution. “That was key to the issue in August to the catchall resentative system,” says Yale profes - the original design.” 13 Committee on Postponed Matters.

www.cqresearcher.com Sept. 7, 2012 747 RE-EXAMINING THE CONSTITUTION

the superstructure remains, to the dis - Most Dislike Electoral College System may of many experts and seemingly More than 60 percent of Americans say the Constitution should be a majority of Americans, who would replace it with direct popular election. amended to allow U.S. presidents to be elected by popular vote rather “I think the Electoral College is the than through the Electoral College system, reflecting a view that has most outmoded piece in the Consti - prevailed since at least 1944. Critics of the Electoral College say tution,” says historian Berkin. candidates can win the White House without gaining a popular “Popular election, this is what we majority. Supporters say the system ensures that the winning candi - expect from other countries,” says date has support from a broad, nationwide coalition. Browne-Marshall, the John Jay profes - sor. “I think we are being hypocrites Do you prefer to amend the Constitution to elect presidents by in allowing the Electoral College.” popular vote or keep the current Electoral College system? Opponents of the Electoral College

80% 73% point in particular to the four presi - 65% 67% 70 61% 61% 62% dential elections in which the winner 60 did not come in first in the popular 50 vote — most recently, Bush’s election 40 35% 35% 35% over Gore. (The others: John Quincy 30 23% 19% Adams, 1824; Rutherford B. Hayes, 20 13% 15% 12% 15% 10 4% 4% 4% 1876; Benjamin Harrison, 1888.) Levin - 0 son shares that concern, but in his 1944 1977 1980 2000 2004 2011 book he sets out several other flaws at length. 16 * Poll results in 1944, 1968, 1977 and 1980 include Popular vote For one thing, Levinson says, the responses of “no opinion.” All others include responses Electoral College system results in candidates’ focusing of “both,” “neither,” and “no opinion.” Figures may not Both/neither/no opinion disproportionately on “battleground” total 100 because of rounding. or “swing” states and virtually writing Sources: “Americans Have Historically Favored Changing Way Presidents Are off states with solid majorities for one Elected,” Gallup, November 2000, www.gallup.com/poll/2323/Americans - party or the other. “As someone who Historically-Favored-Changing-Way-Presidents-Elected.aspx; Lydia Saad, “Americans lives in both Massachusetts and Texas, Would Swap Electoral College for Popular Vote,” Gallup, October 2011, www.gallup. I saw nothing at all of the 2004 cam - com/poll/150245/americans-swap-electoral-college-popular-vote.aspx paign,” he writes. Worse, Levinson says, is the possi - The committee’s recommenda - The system malfunctioned in the bility of an Electoral College deadlock tion, submitted on Sept. 4, set out nation’s third and fourth presidential being thrown into the House — on a the hybrid system that came to be elections. In 1796 Federalist John Adams one vote per state basis. “This provi - called the Electoral College. Electors was elected president and his politi - sion,” he writes, “is a national consti - were allotted to each state based on cal foe Thomas Jefferson, the runner- tutional crisis waiting to happen.” the number of representatives and up, as vice president. In 1800 no can - Yale law professor Amar struck the senators, to be chosen by the state didate had a majority, and the election same ominous note in a law review legislature in whatever manner it was thrown into the House, which re - article in the mid-1990s, describing the chose. Each elector was to vote for quired 36 ballots to choose Jefferson. Electoral College as “a constitutional two candidates. Each state legisla - The 12th Amendment, ratified in 1804, accident waiting to happen.” 17 Today, ture was to send the results to the established the current system of sep - however, he voices less concern about Senate, which would open and arate balloting for president and vice the system. “I like direct election,” he count the ballots and declare a win - president. says, but then adds that he doubts that ner if a candidate received a major - Even with that change, the Framers a change would make a significant dif - ity; the runner-up was to be vice would be hard pressed to recognize ference in political campaigns. “You president. If no candidate received the current system of nationwide, change the metric,” he says. “You don’t a majority, the election would go to media-intensive campaigns organized change the system.” the House, where each state would by political parties, with anonymous Supporters of the Electoral College have one vote. 15 electors chosen by popular vote. Yet see one major advantage to the sys -

748 CQ Researcher tem: greater certainty than with a pop - Barnett forcefully disagrees. “The jected for fear of weakening both Con - ular vote in a close election, with all Framers’ Constitution did not give us gress and the president. 19 but inevitable voting irregularities and that form of government,” he says. The judicial article is also the sparest errors in countless voting places. “Every Of Levinson’s various proposals, only of the first three. It vests “the judicial time the presidential election is with - replacing the Electoral College with power” in a supreme court and “such in 3 percent, you don’t know who popular election has received wide - inferior courts” as Congress decides to wins,” says Lutz, the establish. The courts’ University of Hous - power was defined, sig - ton professor. “The nificantly, to extend to Electoral College “all” cases arising under gives us a winner federal law as well as — and what looks to other categories of like a big winner be - cases. And the Framers cause of the way it’s protected judges from counted.” control by the other m

Reynolds, the Uni - m branches by giving them a K versity of Tennessee tenure “during good be - s a l

professor, is tenta - o havior” and barring pay h c tive on the issue but i cuts while in office. N /

sees a similar ad - s The Supreme Court e g

vantage in reducing a had little to do in its m I

the likelihood of vote first decade, but in 1803 y t recounts and con - t Chief Justice John Mar - e G tests. “There are rea - / shall turned a partisan P sons to think that F dispute over a judicial A the Electoral College Tea Party backers rally in Washington in opposition to the growth of the appointment in Wash - compartmentalizes federal government on Sept. 12, 2010. Elements of the Tea Party ington, D.C., into the fraud,” he says. “Under movement and other states’ rights advocates are pushing to repeal the landmark ruling Mar - 17th Amendment, which established direct election of senators in place the Electoral College, of election by state legislatures, as the Constitution originally stipulated. bury v. Madison , which once a state’s won, established the court’s extra votes don’t matter. In a national spread attention; it has consistently reg - power to declare acts of Congress un - popular-vote system, any extra vote cre - istered majority support in public constitutional. President Thomas Jef - ated by fraud anywhere could con - opinion polls over several decades. 18 ferson criticized the ruling as a judi - ceivably tip the result.” “Every poll has shown majority sup - cial power grab. Despite continuing Barnett, the Georgetown professor, port for getting rid of the Electoral criticism in some conservative circles, opposes direct election for a different College,” Levinson says. “But it’s not the power of judicial review is now reason. He says a popular-vote system going anywhere.” firmly established. would shift power to populous, liberal Like the Framers, Levinson devotes states. “California would swamp a good Should the tenure of Supreme less attention to the judiciary than to deal of the rest of the country,” he says. Court justices under the Consti - Congress or the president. And he en - Among other changes affecting the tution be significantly changed? dorses only one significant structural presidency, Levinson favors shortening Delegates to the Constitutional Con - change: an end to what he calls the the two-and-a-half-month transition pe - vention devoted less time to estab - “indefensible system of life tenure for riod between the election and inau - lishing the judicial branch of the new judges,” especially for Supreme Court guration. (The transition was even longer government than they did with regard justices. Life tenure, he writes, “is an until the 20th Amendment in 1933 to Congress and the president. There idea whose time has passed.” 20 moved the inauguration from March 4 was also less controversy. The only Civics textbooks typically treat the to Jan. 20.) In a more sweeping change, major point of contention came over constitutional provision for life tenure Levinson would provide for a presi - a proposal to give the judiciary a veto for federal judges as essential to an dent to be removed from office by a over legislation passed by Congress — independent judiciary. But the idea of vote of confidence by two-thirds ma - a proposal advanced to strengthen the changing life tenure for Supreme Court jorities in each chamber of Congress. president’s power but eventually re - justices has drawn support over the

www.cqresearcher.com Sept. 7, 2012 749 RE-EXAMINING THE CONSTITUTION

past decade from a surprising num - a mandatory retirement age. “That votes in several of the states were very ber of law professors representing a would make more sense for me,” Lutz close. range of ideological views. Concerns says. “I think the Supreme Court Ten amendments — the Bill of Rights about the mental and physical capac - should turn over every once in a while.” — were needed immediately after - ity of aging justices are one motiva - Lifetime tenure still has supporters, ward to quiet the Anti-Federalists’ con - tion for the proposal, but — as Levin - however, even from a strong critic of cerns about individual rights. ( See box, son explains — “not the main one.” contemporary Supreme Court jurispru - p. 746. ) Two more amendments Instead, limiting justices’ tenure is dence such as Barnett. “I strongly sup - were added in a little over a decade. aimed at promoting more frequent and port lifetime tenure,” the Georgetown But the Constitution was most seri - more regular turnover on the court. professor says. “I am not a huge fan of ously tested by the Framers’ attempt With long tenure, Levinson argues, jus - the Supreme Court. [But] I don’t think to skirt the slavery issue. The failure tices may stay wedded to legal views the problem is lifetime tenure. The prob - of constitutional politics to settle it dating from an earlier era. In addition, lem is who gets put on the court.” brought on a bloody Civil War — regular turnover could reduce what he Historian Bodenhamer also ques - and three additional amendments that, calls the “ sturm und drang ” (storm and tions the need to revise life tenure to over time, fundamentally transformed stress) of contemporary Supreme Court ensure the court’s responsiveness to individual rights and state versus fed - confirmation fights and eliminate the changing political conditions. “Most his - eral powers . 23 justices’ political maneuvering to time torians of the court would argue that The Framers’ ability to craft the com - their retirements so that a like-minded the court has changed over time and promises needed to reach agreement president names their successor. that it continues to be responsive to on the proposed Constitution has been One reason for increased interest significant shifts of opinion in the Amer - celebrated time and again — most fa - in revising lifetime tenure is the trend ican electorate,” he says. mously, in the title Miracle at Philadel - toward justices serving longer than in “It’s quite clear that the court does phia that historian Catherine Drinker the past. Justices who served from follow the election returns,” Bodenhamer Bowen gave to her detailed account. 1789 to 1970 served an average of continues. “Unfortunately, the appoint - But George Washington, who presided 14.9 years, according to data compiled ment process has become really em - over the convention, wrote afterward by Northwestern University professors broiled in the political process. It’s not that the charter was “not free of im - Steven Calabresi and James Lindgren. that the court is in some sense unre - perfections.” 24 Today, historian Berkin Justices from 1970 through Justice San - sponsive. It is quite responsive. It looks stresses that the delegates were “terri - dra Day O’Connor’s retirement in 2006 dysfunctional at times because the pol - fied” that the country would disappear served considerably longer on aver - itics of the moment has made it hard - without a stronger national govern - age: 26.1 years. 21 er for the president to pick justices.” ment to replace the confederation, The most concrete proposals cur - with its rivalries among states and sec - rently under discussion call for 18-year tions. “They compromised every day,” term limits for justices. Calabresi and Berkin says. “They knew that they had Lindgren propose instituting the change BACKGROUND to give up something in order to save by constitutional amendment. Paul Car - the country.” rington, a professor at Duke Law School, The Bill of Rights fulfilled the promise and Roger Cramton, a professor at made by supporters of the Constitu - Cornell Law School, have an alterna - An Imperfect ‘Miracle’? tion during the ratification debates to tive that they believe could be enact - add provisions protecting individual ed by statute. Under their plan, jus - he “Constitution for the United liberties from encroachment by the tices would have 18-year terms of active T States of America” emerged from new national government. The 11th service on the court. Thereafter, a jus - a convention called to rewrite, not re - Amendment was added quickly in 1795, tice would be available to serve on place, the existing Articles of Confed - after an unpopular Supreme Court de - lower federal courts or the Supreme eration. Built on crucial compromises cision, to protect states from being sued Court itself to substitute for justices on such issues as states’ rights and in federal courts. The 12th Amendment forced to disqualify themselves from slavery, the new charter won ratifica - followed a more dramatic demonstra - an individual case. 22 tion only after sharp debates between tion of the Framers’ lack of foresight. Lutz, the University of Houston pro - supporters who called themselves Fed - The emergence of political parties dur - fessor, sees no rationale for the 18- eralists and their opponents, who got ing Washington’s presidency made it year term limit, but looks favorably on stuck with the moniker Anti-Federalists; Continued on p. 752

750 CQ Researcher Chronology

1913 1980s 1776-1791 Sixteenth Amendment authorizes Balanced budget amendment pro - U.S. Constitution is drafted federal income tax. . . . Seven - posed, falls short. and ratified . teenth Amendment establishes di - rect election of U.S. senators; 1997-1998 1776-1787 amendment was proposed by President Bill Clinton impeached Articles of Confederation drafted Congress after nationwide cam - by House on obstruction, perjury (1776), sent to states for ratification paign to force action on issue. counts; acquitted by Senate. (1777), ratified by 13 states (1781). 1919 • 1787-1788 Nineteenth Amendment grants Convention to revise Articles of Con - women right to vote nationwide. federation meets in Philadelphia, 2000-Present drafts new Constitution with stronger 1920s, ’30s Constitutional confrontations central government; signed by 39 First Supreme Court decisions ap - under presidents Bush, Obama. delegates (Sept. 17, 1787); sent to plying Bill of Rights provisions states for ratification; ratified by 11 (freedom of speech, press, reli - 2000 states (December 1787-July 1788). gion, assembly) to states. Supreme Court ruling in Bush v. Gore assures election of George 1791 1933-1936 W. Bush as president; election Bill of Rights ratified; 10 amend - Supreme Court strikes down parts contest highlights pitfalls of Elec - ments establish individual rights. of President Franklin D. Roosevelt’s toral College system. New Deal program. • 2001-2009 1937-1941 Bush tests presidential power after Roosevelt fails with “court-packing” al Qaeda’s Sept. 11, 2001, attacks; 1800s Turmoil over plan (1937); succeeds in shifting domestic surveillance expanded by slavery, Civil War, Reconstruction. court’s ideological balance with new USA Patriot Act; courts rebuff legal appointments as vacancies arise. challenges to Patriot Act; Supreme 1804 Court decisions require habeas Twelfth Amendment separates elec - 1951 corpus review for Guantánamo tion of president, vice president. Twenty-Second Amendment limits detainees. president to two full terms. 1861-1865 2009-Present Civil War breaks out after South - 1954-1969 Obama retreats from broad claims ern states secede over slavery, Supreme Court decisions under of presidential power but leaves states’ rights. Chief Justice Earl Warren stir con - some policies in place; Obama, stitutional debates over desegrega - congressional Democrats assailed 1865-1870 tion, civil liberties, school prayer, by conservatives, Republicans over Thirteenth Amendment abolishes reapportionment, criminal proce - constitutionality of Affordable Care slavery (1865); 14th Amendment dure; efforts to curb rulings by Act; Supreme Court upholds legis - prohibits states from violating due constitutional amendment fail. lation but rejects broadest claims process, equal-protection rights for congressional power. (1868); 15th Amendment prohibits 1971 racial discrimination in voting (1870). Twenty-Sixth Amendment guaran - 2012 tees 18-year-olds right to vote. Calls for amending major features • of Constitution continue as its 1973 225th anniversary on Sept. 17 ap - Abortion-rights ruling in Roe v. Wade proaches; some groups on left and 1900s Federal govern - provokes opposition; protracted cam - right favor new convention to con - ment expands in size, scope; paign to overturn decision by consti - sider changes. Bill of Rights applied to states. tutional amendment fails.

www.cqresearcher.com Sept. 7, 2012 751 RE-EXAMINING THE CONSTITUTION

Rewriting the Constitution: Some Modest Proposals

hen the online magazine Slate asked readers this sum - more equally. Plus, the ability to influence national results through mer to propose amendments to the Constitution, 343 corruption at the state level would be reduced.” W people rose to the challenge. Based on more than 6,000 votes in the so-called “Constitution Smackdown,” Slate “Supermajority To Overturn Laws” by KC64 picked a set of winners and runners-up whose ideas ranged “A supermajority of at least seven Supreme Court Justices should from requiring term limits for politicians to allowing states to be required to overturn laws as unconstitutional. When a law is secede. Meanwhile, The New York Times tapped a bevy of schol - passed by Congress or a state legislature, and signed by a gov - ars for their views on the Constitution, and they too did not ernor or the president, it has already been deemed constitution - hold back. Here are edited excerpts from both publications. al by all those who approved it. If the law is to be deemed un - constitutional, it shouldn’t be a close call. It should be obvious.” From Slate: “Telecommute, Congress!” by MeterReader “Weight Voting by Age with Younger Voters’ Votes Having “Why are there quorum requirements still in place for Con - More Weight” by Winn gress? Why must members of Congress be present in the Capi - “By giving the votes of younger voters greater weight than tol to vote on legislation? . . . The current process creates huge those of their older counterparts, the membership of the ex - waste in travel, security, staff and other support expenses. It ecutive and legislative branches can be structured to look out also facilitates the kind of ‘backroom’ deals, concentrated lob - for the long-term health of the country rather than for the short- bying and lack of transparency that voters hate. Send Congress term benefits of older voters at the cost of the long-term health home, but give them the tools to do their job from there.” of the country and the future earnings of younger voters. The mechanism through which this will work is that the vote of “Abolish Geographic Representation” by Steve Robertson an 18-year-old . . . will count 100 times more than the vote “In a global economy, the idea that we should have repre - of someone who somehow makes it to age 118 or older. The sentatives of New York or Wyoming, as opposed to represen - vote of a 19-year-old will be worth 99 percent that of an 18- tatives of union workers, gays or cat fanciers, seems completely year-old, the vote of a 43-year-old will be worth 75 percent of arbitrary. At least one house of the legislature should be com - that of an 18-year-old, the vote of a 68-year-old will be worth posed of anyone who can collect enough online votes (yes, half of that of an 18-year-old, and so on.” this proposal would have to wait for something like universal broadband) to reach a threshold for representation that is From The New York Times pegged off the census.” Akhil Reed Amar (Professor of Law, Yale University), “Allow Naturalized Citizens to be President” www.nytimes.com/room “Elect the President and V.P. by Direct Vote — No More Elec - fordebate/2012/07/08/another-stab-at-the-us-constitution/revisit toral College” by RadOwl ing-the-constitution-allow-naturalized-citizens-to-be-president. “The Electoral College system for electing the president “[M]odern-day naturalized citizens are barred from the pres - skews the national focus to a few all-important states and their idency simply because they were born in the wrong place to issues. By replacing the Electoral College with direct election the wrong parents. . . . Opening the door of presidential eligi - of the president and V.P., campaigns would have to treat states bility to naturalized Americans will redeem the Constitution’s

Continued from p. 750 gress banned the importation of slaves mise by ruling that, under the Con - absurd to elect as vice president the in 1808; the Missouri Compromise of stitution, Congress could not limit slav - runner-up in the balloting for president 1820 went further by prohibiting slav - ery nor recognize blacks — slave or — as happened in 1796 with the elec - ery in new territories north of Mis - free — as citizens. Inflamed aboli - tion of rivals Adams and Jefferson in souri’s southern border. But the slave - tionist sentiment spurred fearful South - the two offices. The 12th Amendment holding states used their power in ern states to secede and then to pro - separated the two contests, but it left Congress to stifle any discussion of voke the armed confrontation that drew the House’s deadlock-breaking role in abolishing the practice and to win en - the North into a war to save the Union. place and made no move toward pop - actment of a strengthened Fugitive Slave “The Founders’ Constitution failed,” ular election. Act in 1850 as part of another at - Yale’s Amar writes. 25 The slavery issue unsettled Ameri - tempted compromise on the issue. The With the Union victorious in the can politics for a half-century despite Supreme Court’s infamous Dred Scott Civil War, three Reconstruction Con - the Framers’ make-peace accord. Con - decision in 1857 undid the compro - gresses approved and states ratified

752 CQ Researcher grand trajectory, adding a new chapter true to the spirit of the the justices often do little more than count up states with sim - story thus far. The founders promised more equality than had ilar sentences without looking at how states reached those existed in 1775; later amendments brought blacks and women outcomes. . . . [C]larifying and expanding the Eighth Amend - into the fold; and full equality for naturalized Americans is the ment could help. It should specifically state that excessive logical next step.” terms of incarceration are prohibited, just as it bans excessive fines. It should expressly prohibit mandatory sentences so that Melynda Price (Associate Professor, University of Kentucky every case gets the benefit of individualized attention by a College of Law), “Get Rid of the Right to Bear Arms,” www.ny judge. And it should insist that legislatures create a record times.com/roomfordebate/2012/07/08/another-stab-at-the-us-con showing that they considered empirical evidence about the stitution/revisiting-the-constitution-do-we-really-need-the-second- law’s likely impact.” amendment. “I am not naïve enough to believe that doing away with Pauline Maier (Professor of American History, M.I.T.), “Rewrite the Second Amendment would do away with gun violence, but the First Amendment” www.nytimes.com/roomfordebate/2012/07/ I know firsthand the impact of guns and gunshots on children. 08/another-stab-at-the-us-constitution/revisiting-the-constitution- This nation was constructed and reconstructed in the aftermath rewrite-the-first-amendment. of violent and bloody conflicts. Still, the Framers believed that “ ‘Congress shall make no law’ is a peculiarly stingy way not only the Constitution, but also the peaceful way the docu - to begin an amendment that protects the rights of conscience, ment was created, would penetrate the Americans’ minds. . . . speech, press, assembly and petition. James Madison proposed The Second Amendment acknowledged the vulnerability of a more capacious language for those rights. He would have said, nation in its infancy but could not predict a world where some for example, that ‘the civil rights of none shall be abridged on would move through life feeling more like targets than citizens.” account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of Rachel E. Barkow (Professor of Regulatory Law and Policy, conscience be in any manner, or on any pretext infringed.’ He N.Y.U.), “Clarify What’s Cruel and Unusual” www.nytimes.com/ would also have stated that ‘the people shall not be deprived roomfordebate/2012/07/08/another-stab-at-the-us-constitution/ of their right to speak, to write, or to publish their sentiments; revisiting-the-constitution-clarify-whats-cruel-and-unusual-punish and the freedom of the press, as one of the great bulwarks of ment. liberty, shall be inviolable.’ . . . Keeping Madison’s language “Sometimes prison sentences — even the most severe — would make the First Amendment like most of the first eight are a rational response to crime. But often, sentences are the amendments, which affirm basic rights in general terms, not as product of a political process in which politicians are scared restrictions on the federal government.” of appearing soft on crime so they do not even question the reasonableness of a proposed criminal law. . . . The Consti - Sources: Kevin Bleyer, “The Winners of Constitution Smackdown,” Slate , July 5, tution has failed to check this pathological process. The Eighth 2012, http://hive.slate.com/hive/how-can-we-fix-constitution/article/the-winners - of-constitution-smackdown; “Room for Debate: Another Stab at the Constitution, ” Amendment bans ‘cruel and unusual punishments.’ But some The New York Times , July 8, 2012, www.nytimes.com/roomfordebate/ justices do not think this bans excessive prison terms. And 2012/07/08/another-stab-at-the-us-constitution/revisiting-the-constitution-rewrite- the requirement that a sentence be ‘unusual’ has meant that the-first-amendment. successive amendments that collectively persons “born or naturalized” in the Congress exercised the power first in have been called the nation’s “Second United States and laid the groundwork 1866 with a law — the first ever en - Founding.” ( See box, p. 755. ) The 13th for federal supervision of state laws acted over a presidential veto — aimed Amendment, abolishing slavery, was with the Privileges and Immunities, Due at guaranteeing blacks the same con - ratified less than eight months after Process and Equal Protection clauses. tract and property rights as whites. Two the war’s end. The 14th was more The 15th Amendment, added in 1870, subsequent civil rights acts, in 1870 and complex and more contentious. Con - prohibited the states from denying the 1871, sought to safeguard blacks in ex - gress approved it on a party-line vote right to vote on the basis of race. It ercising voting and other political and declared it ratified in July 1868 said nothing about women’s suffrage. rights; an 1875 law barred racial dis - only by counting the votes of military Significantly, each Reconstruction crimination in public accommodations. governments installed in Southern states amendment included a section autho - But Congress and the president that had previously rejected it. The rizing Congress to enforce its provi - stepped away from Reconstruction amendment granted citizenship to all sions through “appropriate” legislation. policies after 1876. And the Supreme

www.cqresearcher.com Sept. 7, 2012 753 RE-EXAMINING THE CONSTITUTION

Court ruled the public accommodations ance movement won ratification of the sions. As early as the 1950s, the court statute unconstitutional in 1883. ill-fated 18th Amendment — Prohibi - under Chief Justice Earl Warren prompt - Despite the limitations now appar - tion — in 1919, only to see it repealed ed efforts to curb its powers with rul - ent, the nation was in a self-confident 14 years later. The women’s suffrage ings that limited Congress’ power in and self-congratulatory mood as it movement achieved a more lasting suc - internal-security investigations; bills to marked the Constitution’s centennial in cess the next year, with ratification of limit the court’s jurisdiction over such 1887. President Grover Cleveland em - the 19th Amendment — again, after cases were introduced but failed. The bodied the national sentiment as he many states had already acted to give reapportionment rulings of the 1960s spoke of the Constitution’s “trials” and women the right to vote. prompted unsuccessful proposals to “triumphs” at a celebration staged in The Supreme Court became the focal overturn them by constitutional amend - front of Independence Hall in Philadel - point of intensified constitutional de - ment. Opponents of the Warren phia. The Constitution “has been found bates during the next two decades as Court’s school prayer rulings and the sufficient in the past,” Cleveland declared. a conservative majority struck down later abortion-rights ruling by the court “And in all the future years it will be economic regulations supported by under Chief Justice Warren E. Burger found sufficient if the American people labor and opposed by business. Two have waged more protracted fights to are true to their sacred trust.” 26 decisions, in 1918 and 1922, striking overturn them by constitutional amend - down federal laws to ban child labor ment, but those too have fallen short. nationwide led to an unsuccessful ef - By contrast, the Constitution was Progressive Eras fort to overturn the rulings by consti - amended three times in a decade to tutional amendment. Labor unions and enlarge voting rights. The 23rd he Constitution, in its second cen - progressive groups also supported an Amendment (1961) gave the District T tury, became an instrument of unsuccessful constitutional amendment of Columbia three electoral votes in sweeping changes in a succession of pushed by Sen. Robert M. La Follette presidential and vice presidential bal - progressive eras broken up by periods Sr., of Wisconsin, to allow Congress loting; broader proposals to grant of political and legal backlash. The fed - itself to override a Supreme Court de - statehood or give the District voting eral government grew in size and scope, cision striking down a federal law representation in Congress have failed. with the Supreme Court’s constitution - simply by re-enacting it. The 24th (1964) abolished poll taxes. al blessing. Mass politics emerged with The court continued to take a nar - And the 26th (1971) gave 18-year-olds the extension of the right to vote to row view of Congress’ powers under the right to vote, nationwide; Congress women and the successful struggle to the Commerce or Tax and Spending had passed a law in 1970 lowering make real the right to vote for African- clauses in the 1930s as it struck down the voting age to 18, but the Supreme Americans. The Constitution itself be - several major parts of President Franklin Court ruled Congress had no author - came a subject of political debate as D. Roosevelt’s New Deal program. The ity to set age requirements for state grassroots movements lobbied for clash inspired FDR’s unsuccessful “Court- and local elections. In the meantime, amendments — sometimes successful - packing” scheme in 1937 — Roosevelt’s Congress had passed the Voting Rights ly, sometimes not — and politicians transparent effort to change the balance Act of 1965, a law enacted under the regularly invoked it to justify their po - of power on the court by providing for 15th Amendment’s enforcement clause sitions or criticize their opponents’. the appointment of additional justices for that gave the federal government Congress and the states approved any over the age of 70. The plan failed broad powers to break down racial four constitutional amendments in the in Congress, but a series of vacancies barriers to voting in state and local first two decades of the 20th century; beginning that year allowed the presi - elections. each represented the culmination of dent to remake the court into a tribunal Four other 20th-century constitutional hard-fought political struggles by mass more supportive of federal power and amendments reflected urges to tinker. political movements. The Sixteenth, more protective of individual rights. The 20th (1933) moved the inaugura - authorizing a federal income tax, was Beginning in the 1950s, the Supreme tion of the president from March 4 to ratified in 1913 to overturn the Supreme Court became the target of a conser - Jan. 20, shortening the post-election Court’s 1895 decision barring such a vative backlash tied to liberal rulings lame-duck period. The 22nd (1951) lim - levy. Also that year the 17th institut - on diverse issues including desegre - its the president to two full terms — a ed direct election of senators nation - gation, internal security, school prayer, return to George Washington’s prece - wide, a goal of the Progressive move - reapportionment, criminal procedure dent after FDR’s elections to third and ment that had already been adopted and abortion — all based on new in - fourth terms. The 25th (1967), approved in a majority of states. The temper - terpretations of constitutional provi - in the wake of the assassination of

754 CQ Researcher President John F. Kennedy, provides for a new president to nominate and Con - The ‘Second Constitution’ gress to confirm a vice president after Three amendments passed soon after the Civil War — during Recon - the death of the president; it also es - struction — have been called “the Second Constitution” because of tablishes a mechanism for the vice pres - the profound effects they had, over time, in recognizing individual ident to act as president in the event the president is disabled. And the 27th, rights and in subordinating the powers of the states to federal law. proposed in 1789 as part of the Bill of Each of the amendments significantly included a final section Rights but ratified only in 1992, pre - specifying that Congress has the power to enforce the amendment “by vents a pay raise for Congress from tak - appropriate legislation.” Here are the amendments, with dates of ing effect until after the next congres - ratification and major provisions: sional election. The flurry of amendments and pro - Thirteenth (Dec. 6, 1865): Prohibits “slavery or involuntary posed amendments suggested a mea - servitude,” except as punishment for crime, within the United States “or sure of discontent with the governing any place subject to their [sic] jurisdiction.” charter. But the Bicentennial observances in 1987 were almost uniformly cele - Fourteenth (July 9, 1868): bratory, climaxing in a nationally tele - Section 1: Recognizes “all persons born or naturalized in the United vised parade and gala in Philadelphia. States, and subject to the jurisdiction thereof” as citizens of the United Speaking outside Independence Hall, States and their state of residence; prohibits any state from abridging President Ronald Reagan recalled the “the privileges or immunities” of citizens of the United States, depriving country’s perilous state as the Framers any person of life, liberty, or property without due process of law, or met to lay the foundation of a new, denying any person “the equal protection of the law.” stronger national government. In a real Section 2: Apportions members of the House of Representatives sense, Reagan said, the American Revo - according to population “counting the whole number of persons in each lution truly began in 1787. It was only State, excluding Indians not taxed;” basis of representation to be with the writing of the Constitution, he reduced proportionately if suffrage was denied or abridged to “any male said, “that the hopes and dreams of the inhabitants,” age 21 or older. revolutionists could become a living, enduring reality.” 27 Section 3: Bars anyone who “engaged in insurrection or rebellion” against the United States, or gave “aid or comfort” to enemies of the United States, from serving as member of Congress, elector for president Constitution in Turmoil or vice president or other civil or military officer of the United States; Congress “may remove such disability” by two-thirds vote of each he Constitution has been in tur - chamber. T moil for much of its third century, Section 4: Validates all public debts of the United States incurred in an era marked by divided government, Civil War, including pensions and bounties; rejects as “illegal and void” partisan polarization and public dis - all public debts of the Confederacy and “any claim for the loss or content. Congress and the president emancipation of any slave.” have clashed almost continuously over fiscal policy, twice taking the govern - Fifteenth (Feb. 3, 1870): Prohibits any state from denying or ment to the edge of a fiscal cliff. The abridging the right of U.S. citizens to vote “on account of race, color, or Supreme Court defined limits of pres - previous condition of servitude.” idential power in politically charged cases involving two chief executives: and Congress, focused most dramati - from each major political party. Neither Republican George W. Bush and his cally on Obama’s health care plan as of the Bush presidents nor Clinton served Democratic predecessor, Bill Clinton. enacted by a Democratically con - with a Congress with both chambers The court was also thrust into decid - trolled Congress. controlled by his party for most of his ing the razor’s-edge 2000 election be - Divided political control of the White time in the White House; Obama faces tween Bush and Gore. And critics of House and Congress, once the ex - the same fate even if re-elected, unless presidential and congressional power ception in U.S. history, has been the Democrats can defy the oddsmakers have found frequent fault with Obama norm under the last four presidents, two and regain control of the House.

www.cqresearcher.com Sept. 7, 2012 755 RE-EXAMINING THE CONSTITUTION

The partisan divisions have con - Senate trial, with Chief Justice William disappointed civil liberties and human- tributed to the growing sense of a H. Rehnquist presiding, ended in Feb - rights groups by continuing to claim “dysfunctional” federal government. ruary 1999 with Clinton’s acquittal on broad presidential authority to detain An ABC- Washington Post poll in Feb - both counts. foreigners suspected of anti-American ruary 2011 found only 26 percent of The close partisan divisions played terrorism. He arguably went beyond respondents optimistic about “our gov - a part in exposing the potential pitfalls Bush’s policies by claiming the power ernment and how well it works” — in the Electoral College system when to direct lethal attacks against U.S. citi - the lowest figure since the question Bush and Gore fought to a near draw zens abroad if linked to al Qaeda. In was first asked in 1974. 28 in the 2000 presidential election . 29 The domestic politics, Obama and congres - The partisan divisions have played outcome hinged on Florida’s 25 elec - sional Democrats have been under out most dramatically in budget bat - toral votes, but Bush’s apparent elec - nearly constant attack for three years tles between Democratic presidents and tion night victory was narrowed to over the health care bill, enacted in Republicans in Congress. A budget im - only 327 votes after a recount. Gore March 2010 as the Patient Protection passe between Clinton and Republi - contested the results, spawning litiga - and Affordable Care Act. Constitution - cans, who then controlled both the tion that reached the Supreme Court al attacks centered on provisions re - House and the Senate, resulted in two twice. Gore won the popular vote na - quiring individuals to obtain health in - government shutdowns, in late 1995 tionwide, but news coverage during surance and expanding coverage of the and early 1996, totaling 28 days. In the litigation noted that Florida’s GOP- joint state-federal Medicaid program. summer 2011, Obama and the GOP- controlled legislature could award the Legal challenges that spanned two controlled House locked horns over a electoral votes without regard to the full years ended on June 28 with a close - debt limit increase, reaching agree - vote tabulation in the state or that the ly divided Supreme Court leaving the ment only barely in time to avert the election could wind up in the House law largely intact while rejecting the ad - first ever federal government default. of Representatives. The Supreme Court’s ministration’s major rationale for the in - Throughout the period, Republicans 5-4 decision to cut off the recount in surance mandate. Obama claimed vic - and some Democrats urged passage Florida effectively ended the election tory with the ruling, while conservatives of a proposed balanced budget con - with Bush the winner. and Republicans consoled themselves by stitutional amendment. The House ap - Just nine months after his inaugura - pointing to aspects of the court’s ruling proved an amendment in January 1995, tion, Bush faced a test of presidential suggesting limits on Congress’ commerce but the measure fell just short of the leadership that turned into a test of pres - and spending powers . 31 needed two-thirds majority in the Sen - idential power: al Qaeda’s Sept. 11, 2001, ate. The House voted on the issue in terrorist attack on the United States. November 2011, but it fell short of a Bush responded by winning congres - two-thirds majority (261-165). sional approval of legislation, the USA CURRENT Clinton also faced politically charged Patriot Act, expanding domestic sur - investigations raising constitutional is - veillance powers. He also launched a sues during much of his presidency war in Afghanistan that resulted in the SITUATION that included an inquiry by an inde - capture of hundreds of prisoners who pendent counsel, a sexual harassment were brought to the U.S. Naval Base lawsuit and, ultimately, the second pres - at Guantánamo Bay, Cuba. Civil liber - Convention Talk idential impeachment in U.S. history. ties groups and others unsuccessfully The Supreme Court in 1997 rejected challenged provisions of the Patriot nterest in calling a convention to Clinton’s effort to defer the sexual ha - Act in court, but they won some mod - I amend the Constitution is stirring rassment lawsuit while he was presi - if ications when it was renewed in 2006. among some unlikely political bedfel - dent. Independent counsel Kenneth Human-rights lawyers representing the lows on the left and the right, but the Starr summoned Clinton before a fed - Guantánamo prisoners won a Supreme odds still appear to be heavily against eral grand jury to answer allegations Court decision establishing the right to the first-ever use of this alternate process of sexual behavior with a White House judicial review, but as Bush left the of writing and ratifying a constitutional intern. Starr submitted his conclusion White House more than 200 were still amendment. that Clinton had committed perjury to being held. 30 Some conservatives want to use the the House, which voted in December Obama took office in 2009 promis - convention route to limit federal spend - 1998 to impeach him on two counts: ing to undo some of the Bush admin - ing policies by adding a balanced perjury and obstruction of justice. The istration’s anti-terrorism policies, but he Continued on p. 758

756 CQ Researcher At Issue:

Shoyes uld a constitutional convention be called?

SANFORD LEVINSON MEG PENROSE PROFESSOR OF LAW , U NIVERSITY OF TEXAS PROFESSOR OF LAW , T EXAS WESLEYAN LAW SCHOOL WRITTEN FOR CQ RESEARCHER , SEPTEMBER 2012 WRITTEN FOR CQ RESEARCHER , SEPTEMBER 2012

e very much need a new constitutional convention, e live in very interesting times. The federal govern - for two reasons. The first is simply that our 18th- ment appears to be failing. The state governments w century Constitution, remarkably unchanged with re - w are not faring much better. And the political parties gard to our basic institutional structures, contributes to the wide - seem broken beyond repair. Amid this dysfunctional backdrop spread perception, across political and ideological lines, that our are calls for change. Radical change. Scholars and activists alike political system is “broken,” “dysfunctional” or “pathological.” are calling for resort to a little known constitutional provision, Many causes are assigned to the contemporary unhappiness Article V. with our politics — 24-hour confrontational news programs, the Since the first constitutional convention in 1787, Article V ever-bigger role of money and ever-stronger “partisanship,” has lain dormant. Article V provides states with an avenue to where loyalty to one’s political party often seems to take prece - amend the Constitution when the federal government is un - dence over genuinely striving to work for the public good (if able or unwilling to do so. Many welcome the current grid - credit might go to members of the other party). All bear some lock as an opportunity to call an untested, unregulated and of the blame, but it is past time to realize that the Framers, unconfined Article V constitutional convention (“Con-Con”). A drafting a constitution for a substantially different world, made growing chorus sees the Con-Con as the solution to our fail - their own coyntribution to toeday’s dysfunsction. ing governmennt. I do not. o They would not be surprised to learn that the Constitution I strongly oppose wading into the Con-Con experiment might need changing. Article V speaks to the certainty of im - during the current political climate. My opposition is based on perfections in the design by providing a mechanism for the fact that under any Article V Con-Con experiment, Con - change, including, crucially, a new constitutional convention. gress — and all its toxicity — will undoubtedly play a signifi - James Madison, even when supporting ratification of the new cant role in the convention process. Congress, not the states, constitution, emphasized the necessity of paying strong atten - will be the first to interpret Article V and establish the Con- tion to “the lessons of experience” that might suggest ways of Con parameters. And when the states challenge Congress’ role, improving our system. One might expect the Framers to be as they assuredly would, they would be forced to turn to an shocked that so many modern Americans treat them as equally divided, and divisive, branch of our government, the demigods, making decisions for all time, rather than gifted, but Supreme Court. This process, undertaken at this particular necessarily imperfect, men doing their best in troubled times to time, has all the markings of a true constitutional crisis. solve what they thought was the crisis facing the young coun - Our Constitution has endured for generations because, try at the time. We best honor their spirit by asking the tough while large on democratic ideas and principles, it has always questions they did in 1787 — precisely what might need to be remained short on detail. The Constitution, including Article V, changed in order to confront our own challenges? is but a rough outline of an ideal government. It was inten - But there is a second reason for a convention: It is foolish tionally crafted to be difficult to amend. to expect Congress to take the time to address the multiple The Con-Con advocates cannot assure us what an Article V and complex questions that a convention would have to con - convention would look like, who would be in charge or how front. Even if one suspends all cynicism about whether politi - business would be conducted. There are no guarantees that cal “ins” would ever seriously contemplate changes that would the Con-Con would be limited to amendments upon which threaten their own power, they just don’t have the time. Con - the requisite states agree, or whether it would be open to the gress is faced with too many other issues to expect them to sentiments of the attendees and their respective agendas. suspend their regular work to take off a year for serious de - The problem, quite simply, is that there is no way to pre - bate about how to make the Constitution more functional for dict how this revolutionary idea would take shape. After all, the 21st century. Only an independent body — a constitution - the only constitutional convention this country has witnessed, al convention — with no legislative or executive duties could the original Constitutional Convention, immediately abandoned take the time for study, hearings and intense debate that We its limited mandate and proved to be the very runaway con - the People would legitimately expect before embarking on vention that Con-Con opponents now fear. If history repeats itself, we have reason to be fearful. neededno constitutional changes. www.cqresearcher.com Sept. 7, 2012 757 RE-EXAMINING THE CONSTITUTION

Continued from p. 756 Institute and the Tea Party Patriots and Congress to call a convention, as the budget provision to the Constitution others from liberal groups such as Article V amendment procedure out - or, in a more recent proposal, requir - Common Cause and the Green Party. lines. The Goldwater Institute lobbied ing approval by state legislatures to in - In opening the conference, Lawrence in 26 states over the past two legisla - crease the national debt ceiling. Some Lessig, a left-leaning professor at the tive seasons in favor of calling a con - liberals want to amend the Constitution law school, said the Framers deliber - vention to consider the national-debt to enact campaign finance reform — ately included the convention route to amendment, but only two approved the most specifically, to overrule the Supreme an amendment to allow circumventing proposal: Louisiana and North Dakota. Court’s controversial Citizens United de - roadblocks in Congress. “The Framers Nick Dranias, director of constitutional cision to allow limits on corporate spend - recognized that there might be times studies for the Goldwater Institute, says ing in political campaigns. 32 when Congress might not be capable the proposal was “overwhelmingly” op - Both sides want to use the con - of proposing the kinds of amendments posed by two other conservative groups: vention route because they despair of that the nation needs,” Lessig said. the Eagle Forum and the John Birch winning approval Society. “They proved to of their proposals be quite the foe,” he says. from two-thirds ma - On the left, Segal, jorities in both who also served as a chambers of Con - Green Party represen - gress, as required in tative on the Providence, the procedure used R.I., City Council, also for all 27 amend - acknowledges scant ments to date. “Con - progress on the issue. gress is captured by “A few resolutions have g n

so many interests,” o passed, but activity isn’t W David Segal, a for -

x as robust as one might e mer Democratic l A hope, given the intran - / s

state representative e sigence of Congress,” he g from Rhode Island, a says. Segal says he wants m I

said as he opened a y to see the convention t t two-day conference e address “election reform G on a constitutional President Obama signs the Patient Protection and Affordable Care Act and money in politics convention at Harvard on March 23, 2010. Constitutional attacks on the law centered on — very worthy causes.” Law School in late provisions requiring individuals to obtain health insurance and Further complicating September 2011. 33 expanding coverage of Medicaid. On June 28 a closely divided Supreme the push for a conven - Court left the law largely intact while rejecting the administration’s Advocates of a major rationale for the insurance mandate. Conservatives and tion are the many un - constitutional con - Republicans consoled themselves by pointing to aspects of the court’s knowns associated with vention, however, run ruling suggesting limits on Congress’ commerce and spending power. a procedure never suc - up against opposition cessfully invoked. Ques - from others on both the left and the The conference was co-sponsored tions discussed but left unresolved at the right, who raise fears of a “runaway by Tea Party Patriots, largest of the conference include whether a convention convention” that would repeal rights- Tea Party organizations. Mark Meck - could be limited in scope, how the rules protecting provisions viewed as sacro - ler, a California attorney and co-founder for the convention would be established sanct by one side or the other: free of the group, told the gathering that and how delegates would be elected. speech for the left, gun rights for the he was “neither for or against a con - Supporters of a convention note, right. “This is almost literally the first vention.” But he batted away concerns however, that pushing the procedure thing you hear,” says Levinson, the Uni - about a runaway convention. Meckler could itself pressure Congress into act - versity of Texas professor who has been said he was “confident” that debate at ing. They note that Congress approved a leading proponent of a convention. the convention would be both “rea - the 17th Amendment, which estab - The Harvard conference featured soned” and “heated,” but “in the end lished direct election of U.S. senators, speakers from such conservative and we would do the right thing.” after proponents of the change had libertarian organizations as the Cato Only minimal concrete progress has gotten nearly enough states to call for Institute, the Arizona-based Goldwater been made in getting states to request a convention to force Congress to act.

758 CQ Researcher Despite the interest from different of Americans have never read the Con - the National Archives building in Wash - ideological groups, many constitutional stitution,” Berkin says. “There’s just so ington along with the Declaration of experts remain profoundly skeptical, es - much uninformed discussion that it Independence and the Bill of Rights. pecially on the political left. “I have trust makes your head spin.” The Archives museum receives about issues,” says Browne-Marshall, the John The ignorance and misunderstand - 1 million visitors per year, a spokes - Jay College professor. “I do not trust ings about the Constitution extend to woman says. those people in that room to put the matters both small and large, the his - The National Constitution Center in interests of the country above their own torians say. Berkin says she once had Philadelphia drew 817,727 visitors in or whatever group to which they owe an argument with someone who in - 2011, according to a spokeswoman. The their allegiance.” sisted Abigail Adams was a delegate center is sited across Independence Mall Interest appears to be somewhat to the Philadelphia convention. She from Independence Hall, the former greater among conservative constitu - was not, nor was her husband John Pennsylvania statehouse where the Con - tional experts. “I’ve sort of come to a Adams or Adams’ later political rival, stitutional Convention met. conclusion that it’s not such a bad Jefferson. They were both posted The center’s introductory presen - idea,” says Reynolds, the University of abroad in 1787 as ambassadors to tation for visitors, entitled “Freedom Tennessee professor. “We really need Britain and France, respectively. Rising,” tells the history of the Con - to focus on why our system is not More broadly, Beeman says Amer - stitution in celebratory tones but rec - working.” icans misunderstand the Framers’ basic ognizes some aspects less worthy of “A convention might lead to useful reason for establishing a new nation - celebration. A live narrator acknowl - change even if were a failure,” Reynolds al government. “For most Americans, edges that the Framers’ commitment adds. “That’s not a failure. That might the Constitution is the Bill of Rights to equality “did not include all the be a success in that it would cause — those amendments that speak people.” The Constitution left slavery people to focus on [needed constitu - about what Congress is not allowed up to the states, without ever using tional changes].” to do,” he explains. Beeman agrees the word itself. It took 75 years and that the Framers had “a healthy dis - a Civil War to abolish slavery, the nar - trust of concentrations of power,” but rator says, and another century to Constitution Talk says the delegates “gathered to estab - overcome racial segregation. Women lish a stronger government.” were not granted the vote nationwide nterest in the Constitution is spiking “The best statement of that is in the until the 20th century. I as the 225th anniversary approach - preamble,” Beeman continues, refer - Some visitors on a recent week - es, but many experts say Americans fall ring to the six grand purposes set out end in August picked up on some short in their knowledge and under - at the start of the Constitution. “To do of the points. “It’s amazing to me as standing of a founding document that the things in the preamble, you need - a woman that we weren’t able to vote they nevertheless celebrate and revere. ed a strong, central government.” until 1920,” said Mary Wicker, a “Americans appear to love and ab - Conservative experts and commen - homemaker from Runnemede, N.J. solutely revere the Constitution, to re - tators view the purpose of the Con - All the delegates, she said, “were rich, gard it as the thing that defines who stitution differently. “The pushback white males.” Floyd Smith, an African- they are and what we stand for in this against the great expansion of gov - American security officer visiting from nation,” says Richard Beeman, a pro - ernment spending and regulations that Chicago, said he would have voted fessor of history at the University of began in the Bush administration and against the pro-slavery provisions if Pennsylvania in Philadelphia and author continued in the Obama administra - he had been a delegate, even at the of a recent history of the writing of the tion is being organized around the risk of some slave-holding states Constitution, Plain Honest Men . 34 Constitution as the main argument walking out. Even so, Beeman says, “Americans’ against these measures,” says Barnett, Other visitors left with fewer reser - ignorance of the specifics of the Con - the Georgetown law professor. Author vations about the Framers’ work. “It’s stitution is quite vast.” For that reason, Freedman sees a need to amend the really quite amazing how they figured he sees “a kind of obvious disjunction Constitution “in a way that is likely to it out,” said Pat Aurand, a teacher in about what Americans know and their produce results consistent with the orig - Philadelphia. “They were up against apparent reverence for it.” inal design.” some tough stuff.” Wicker also ended Baruch College historian Berkin Americans interested in viewing the with approving remarks. The Consti - agrees. “I’m willing to bet you that 99 original Constitution itself can see it tution, she said, “is the thing that ties and 44 one-hundredths of a percent on display in the central rotunda of us together.”

www.cqresearcher.com Sept. 7, 2012 759 RE-EXAMINING THE CONSTITUTION

Island, voted to ratify only after the sor Amar agrees. “Am I critical of our new government had been formed. And system?” he asks, rhetorically. Yes, he OUTLOOK the price for winning ratification was says, but “more of our culture than the the Bill of Rights, the package of amend - formal world of the Constitution.” ments proposed and submitted to the The Framers themselves had only lim - The ‘Durable’ Constitution states by the First Congress in order to ited hopes for the Constitution, historian satisfy the fears of the Anti-Federalists Berkin notes. “They knew that all Re - he Constitution is “the oldest gov - of an overreaching central government. publics devolve into tyranny,” she says. T erning document still in existence Echoes of the debates between the “What they wanted to do is to delay this today,” actor-commentator Ben Stein Federalists and Anti-Federalists can be as long as possible.” She says they would tells visitors to the National Constitu - heard in the sharp arguments in Wash - be surprised at how long it has lasted tion Center in a video. The important ington and across the nation today with so few changes. “They didn’t envi - point, Stein adds, “is not how old it over the scope and powers of the fed - sion that changing the Constitution would is, but how durable it is.” eral government. Historian Bodenhamer be so extraordinarily difficult,” she says. With only 27 amendments in 225 finds the arguments neither surprising Those who favor changing the Con - years, the Constitution does appear to nor disturbing. “The Constitution in - stitution have a decidedly uphill struggle have stood up remarkably well over vites us to struggle over issues of power to do so. “It’s hard for me to imagine time. But it has also been the focus of and rights,” Bodenhamer says. “This is any major structural changes,” Boden - all but continuous struggle from the mo - what makes the Constitution a radical hamer says. Reynolds tentatively agrees. ment it was written up to the present document. It puts the responsibility of A quarter-century from now, he says, “I day. “The history of the Constitution that struggle back on the people be - would say it would look more like what shows that it has been a constant focus cause we hold popular sovereignty.” we have today than something different.” of the American people in the question Fellow historian Beeman is dis - Still, the arguments go on. “Ameri - of who we are as a nation and who do turbed, however, by the tone of some cans have been arguing about the we want to become,” says Frederickson of the arguments. “A lot of the pas - Constitution from the very, very be - with the American Constitution Society. sion that one hears in the current de - ginning,” says Penn professor Beeman. The debates over ratification them - bate over how to interpret the Con - “I regard that in general as a sign of selves were contentious and the out - stitution is generated by the fact that its health rather than its infirmity.” come far from certain as the delegates Americans may feel very strongly about left Philadelphia in September. 35 Three it but don’t know much about it,” he states ratified before the end of the year. says. “They don’t know what’s in it.” Notes But when New Hampshire became the The Constitution is also taking some ninth to ratify on June 21, 1 788, two of the blame for the political gridlock 1 The full text of the original Constitution is states crucial to the Union — Virginia in Washington — wrongly in the view on the National Archives’ website: www.archives. and New York — remained to be heard of some of the experts. “We have a ter - gov/exhibits/charters/constitution_transcript. from. Virginia voted to ratify on June rible political culture in this country,” html . For a compact account of the Constitu - 25 and New York on July 26 , but the says University of Tennessee professor tional Convention, see Robert K. Landers, “Bi - margins were close in both states. The Reynolds. “It’s difficult to blame the centennial of the Constitution,” Editorial Re - last two states, North Carolina and Rhode Constitution for that.” Yale law profes - search Reports , March 27, 1987, http://library.cq press.com/cqresearcher/document.php?id=cqres rre1987032700&type=hitlist&action=print . 2 Sanford Levinson, Our Undemocratic Consti - About the Author tution: Where the Constitution Goes Wrong (and Associate Editor Kenneth Jost graduated from Harvard How We the People Can Correct It) (2006), pp. College and Georgetown University Law Center. He is the 4-7. See also Sanford Levinson, Framed: Amer - author of the Supreme Court Yearbook and editor of The ica’s 51 Constitutions and the Crisis of Gover - nance (2012). Supreme Court from A to Z (both CQ Press ). He was a mem - 3 Text of Marshall’s speech, May 6, 1987, to ber of the CQ Researcher team that won the American Bar the San Francisco Patent and Trademark Law Association’s 2002 Silver Gavel Award. His previous reports Association, www.thurgoodmarshall.com/speech include “States and Federalism” and “Abortion Debates.” es/constitutional_speech.htm . For coverage, He is also author of the blog Jost on Justice (http://jost see Stuart Taylor Jr., “Marshall Sounds Criti - on justice. blogspot.com). cal Note on Bicentennial,” The New York Times , May 7, 1987, p. A1.

760 CQ Researcher 4 David J. Bodenhamer, The Revolutionary Constitution (2012). 5 See Kenneth Jost and Greg Giroux, “The FOR MORE INFORMATION Electoral College,” CQ Researcher , Dec. 8, 2000, American Constitution Society , 1333 H St., N.W., 11th Floor, Washington, DC pp. 977-1008. 20005 ; 202-393-6181 ; www.acslaw.org . Liberal-leaning organization promoting con - 6 See Akhil Reed Amar, The Unwritten Con - stitutional values of individual rights and liberties, equality, access to justice, stitution: The Precedents and Principles We democracy and rule of law. Live By (2012); America’s Constitution: A Bi - Cato Institute , 1000 Massachusetts Ave., N.W., Washington, DC 20001 ; 202-842- ography (2005). 7 0200 ; www.cato.org . Libertarian think tank supporting limited government and Randy E. Barnett, Restoring the Lost Con - free markets. stitution: The Presumption of Liberty (2004). 8 See Maggie Clark, “States Look to Article V Constitution Project , 1200 18th St., N.W., Suite 1000, Washington, DC 20036 ; to Limit Federal Power,” in Kenneth Jost, “States 202-580-6920 ; www.constitutionproject.org . Nonprofit think tank seeking bipartisan consensus on constitutional and legal issues. and Federalism,” CQ Researcher , Oct. 15, 2010, pp. 845-868. The Federalist Society , 1015 18th St., N.W., Suite 425, Washington, DC 20036 ; 9 Carol Berkin, A Brilliant Solution: Invent - 202-822-8138 ; www.fed-soc.org . Organization of conservatives and libertarians ing America’s Constitution (2002). seeking to reform the American legal system in accordance with an originalist in - 10 “Muhammad Ali: 2012 Liberty Medal Recip - terpretation of the Constitution. ient,” National Constitution Center, http://consti National Constitution Center , Independence Mall, 525 Arch St., Philadelphia, PA tutioncenter.org/libertymedal/recipient_2012. 19106 ; 215-409-6600 ; constitutioncenter.org . Independent nonprofit institution — html . largely funded by federal and state government entities — dedicated to educating 11 Account drawn from Berkin, op. cit. , pp. the American public about the Constitution. 96-112. 12 Levinson, op. cit., pp. 58-59. The study is Public Policy , Vol. 12 (summer 2006), pp. 770- 28 “Economy, Gas, Partisanship and War Gang “The Potential for Minority Rule in U.S. Con - 877, http://epstein.usc.edu/research/supctLaw Up on Confidence in Government,” ABC News- gressional Elections,” FairVote: The Center for Calabresi.pdf . Washington Post poll, March 15, 2011, www. Voting and Democracy, February 2005, http:// 22 See Linda Greenhouse, “New Focus on the langerresearch.com/uploads/1121a2%202011% archive.fairvote.org/library/geog/congress/mi Effects of Life Tenure,” The New York Times , 20Politics.pdf . norityrule2004.htm . Sept. 10, 2007, p. A20. See also Paul Carring - 29 For a comprehensive account, see Ken - 13 Adam Freedman, The Naked Constitution: ton and Roger C. Cramton (eds.), Reforming neth Jost, Supreme Court Yearbook 2000-2001 . What the Founders Said and Why It Still Mat - the Court: Term Limits for Supreme Court (2005). 30 The case is Boumediene v. Bush , 553 U.S. ters (2012). Freedman covers legal affairs for Levinson was one of the contributors to the 723 (2008). See Kenneth Jost, Supreme Court Ricochet.com, a conservative news site. volume; it also includes an earlier version of Yearbook 2007-2008 . 14 See Niels Lesniewski, “GOP Senate Candi - Calabresi and Lindgren, op. cit. 31 The case is National Federation of Inde - dates Advocate 17th Amendment Repeal,” Roll 23 For longer accounts of the Constitutional pendent Business v. Sebelius , 567 U.S.—(2012). Call , Aug. 13, 2012, www.rollcall.com/news/ Convention, see Berkin, op. cit. ; Catherine For a comprehensive account, see Kenneth GOP-Senate-Candidates-Advocate-17th-Amend Drinker Brown, Miracle at Philadelphia: The Jost, Supreme Court Yearbook 2011-2012 ment- Repeal-216856-1.html ; John Yoo, “Repeal Story of the Constitutional Convention, May (forthcoming). the 17th Amendment?,” National Review On - to September 1787 (1986: first published 1966). 32 The decision is Citizens United v. Federal line , Oct. 22, 2010, www.nationalreview.com/ Some subsequent background drawn from Election Commission , 558 U.S. 50 (2010). For corner/250726/repeal-17th-amendment-john-yoo . Amar, op. cit. an account, see Kenneth Jost, Supreme Court 15 Account drawn from Berkin, op. cit. , pp. 24 Washington’s letter to his nephew (and fu - Yearbook 2009-2010 . 136-146. ture Supreme Court justice) Bushrod Wash - 33 Account and quotes taken from the archived 16 See Levinson, op. cit. , pp. 85-98. ington is quoted in Levinson, op. cit. , p. 21. proceedings. See “Conference on the Consti - 17 Akhil Reed Amar, “A Constitutional Accident 25 Amar, op. cit. , p. 360. tutional Convention,” Harvard Law School, Waiting to Happen,” Constitutional Commen - 26 Public Papers of Grover Cleveland (1889), Sept. 24-25, 2011, www.conconcon.org/archive. taries , Vol. 12, p. 143 (summer 1995), www.law. pp. 263-264, http://books.google.com/books? php . For coverage, see James O’Toole, “Con - yale.edu/documents/pdf/1995Constitutional.pdf . id=p35RAAAAYAAJ&pg=PA266&lpg=PA266& stitutional Convention Call Gains Traction,” 18 See “Americans Would Swap Electoral Col - dq=constitution+centennial+celebration+1887+ Pittsburgh Post-Gazette , Dec. 12, 2011, p. A1; lege for Popular Vote,” Gallup, Oct. 24, 2011, grover+cleveland&source=bl&ots=B-MMDTeq Gregory Korte, “Balanced budget push brews www.gallup.com/poll/150245/Americans-Swap- JF&sig=T_XjMmHeNSq7JnVxkgdZjUJlkFY&hl= debate,” USA Today , Nov. 30, 2011, p. 4A. Electoral-College-Popular-Vote.aspx . en#v=onepage&q=constitution%20centennial 34 Richard Beeman, Plain Honest Men: The 19 See Berkin, op. cit. %20celebration%201887%20grover%20cleve Making of the American Constitution (2009). 20 Levinson, op. cit. , pp. 123-139. land&f=false . 35 For a history, see Pauline A. Maier, Rati - 21 Steven G. Calabresi and James Lindgren, 27 Public Papers of Ronald Reagan , Sept. 17, fication: The People Debate the Constitution, “Term Limits for the Supreme Court: Life Tenure 1987, www.reagan.utexas.edu/archives/speech 1787-1788 (2011). Reconsidered,” Harvard Journal of Law and es/1987/091787a.htm .

www.cqresearcher.com Sept. 7, 2012 761 Bibliography Selected Sources

Books Liu , Goodwin , Pamela S. Karlan and Christopher Schroed - er , Keeping Faith With the Constitution , American Con - Amar , Akhil Reed , America’s Constitution: A Biography , stitution Society , 2009 , www.acslaw.org/pdf/ACS_Keep - Random House , 2005 . Faith_FNL.pdf . The well-known Yale law professor “seeks to reacquaint The book examines, from a progressive perspective, applica - twenty-first century Americans with the written Constitution” tion of the Constitution in such areas as equality, democracy, in a comprehensive “biography” from its birth to the present. criminal justice and liberty. Liu was a law professor at the Uni - Includes illustrations, detailed notes. Amar’s most recent book versity of California-Berkeley and is now a justice on the Cali - is America’s Unwritten Constitution: The Precedents and Prin - fornia Supreme Court; Karlan is a professor at Stanford Law ciples We Live By (Basic Books, 2012). School, Schroeder a professor at Duke University School of Law.

Barnett , Randy E. , Restoring the Lost Constitution: The Maier , Pauline A. , Ratification: The People Debate the Presumption of Liberty , Princeton University Press , 2004 . Constitution, 1787-1788 , Simon & Schuster , 2010 . A Georgetown law professor who later played a major role A prominent history professor at the Massachusetts Insti - in the legal challenges to President Obama’s health care plan tute of Technology provides the first comprehensive history forcefully argues that courts have read key provisions of the of what she calls “one of the greatest and most probing Constitution in a way that reduces or eliminates protections public debates in American history.” Includes detailed notes. for liberty against governmental power. Includes notes. Monk , Linda R. , The Words We Live By: Your Annotated Beeman , Richard , Plain, Honest Men: The Making of the Guide to the Constitution , Hyperion , 2003 . American Constitution , Random House , 2009 . A constitutional scholar illustrates the Constitution, section A history professor at the University of Pennsylvania provides by section, with historical and contemporary accounts of is - a detailed, day-to-day account of the Constitutional Conven - sues and controversies arising under the provisions. Includes tion. Includes detailed notes. illustrations, notes, selected bibliography.

Berkin , Carol , A Brilliant Solution: Inventing the Amer - On the Web ican Constitution , Harcourt , 2002 . A historian at Baruch College, City University of New York, “Centuries of Citizenship: A Constitutional Timeline,” Na - gives a compact account of events from the call for the Fed - tional Constitution Center , http://constitutioncenter. org/ eral Convention and the writing of the Constitution through timeline /. ratification and the inauguration of President George Wash - The online resource traces significant events in U.S. con - ington. Includes short biographies of all delegates to the stitutional history from the signing of the Magna Carta in Constitutional Convention. 1215 to the present day.

Bodenhamer , David J. , The Revolutionary Constitution , “Charters of Freedom,” National Archives , www.archives. Oxford University Press , 2012 . gov/exhibits/charters /. A professor of history at Indiana University traces the evo - The site allows a virtual visit to the principal exhibit at the lution of the Constitution from its ratification to the present National Archives in Washington with its displays of the De - day in regard to such “core concepts” as federalism, equality, claration of Independence, Constitution and Bill of Rights rights and security. Includes notes. and exhibit cases tracing the “making” of the charters and their impact. Includes links to additional historical material. Freedman , Adam , The Naked Constitution: What the Founders Said and Why It Still Matters , Broadside , 2012 . From CQ Press A conservative commentator argues for returning to what he calls the “original meaning” of the Constitution and for Maddex , Robert L. , The U.S. Constitution A to Z (2d calling a new constitutional convention to limit the growth ed.), CQ Press , 2008 . of government. Includes select bibliography. The 731-page volume provides easy-to-find entries ex - amining provisions of the Constitution and their applica - Levinson , Sanford , Our Undemocratic Constitution: Where tion in U.S. society today. Includes selected bibliography, the Constitution Goes Wrong (and How We the People online resources, other appendix material. Maddex is an Can Correct It) , Oxford University Press , 2006 . attorney specializing in constitutional law. The book is A law professor at the University of Texas-Austin argues in part of CQ Press’ five-volume American Government A to favor of considering major structural changes to provisions Z series. Other titles are Congress A to Z , Presidency A to in the Constitution regarding Congress, the president, the Z, Supreme Court A to Z and Elections A to Z. Supreme Court and the amendment process. Includes notes.

762 CQ Researcher The Next Step: Additional Articles from Current Periodicals

Constitutional Convention Gorham , Will Short , “Of 11,000 Attempts to Amend U.S. Constitution, Only 27 Amendments Have Passed,” Tampa Korte , Gregory , “Balanced Budget Push Brews Debate,” Bay (Fla.) Times , Aug. 30, 2011 , www.politifact.com/truth- USA Today , Nov. 30, 2011 , p. A4 , www.usatoday.com/ o-meter/statements/2011/aug/30/xavier-becerra/11000- NEWS/usaedition/2011-11-30-constitutional-convention_ attempts-amend-us-constitution-only-27-amend /. ST_U.htm . Amendments are approved by Congress and ratified by states Supporters of a balanced-budget amendment believe a con - only when there is broad national consensus on an issue. stitutional convention is the best hope for passage. Levinson , Sanford , “Our Imbecilic Constitution,” The O’Toole , James , “Constitutional Convention Call Gains New York Times , May 29, 2012 , p. A23 , campaignstops. Traction,” Pittsburgh Post-Gazette , Dec. 12, 2011 , p. A1 , blogs.nytimes.com/2012/05/28/our-imbecilic-constitution /. www.post-gazette.com/stories/news/us/constitutional- Article V makes the Constitution the most difficult to amend convention-call-gains-traction-223813 /. of any in the world, says a University of Texas law professor. A growing number of scholars and activists are calling for a constitutional convention to curb political bickering. Supreme Court

Shea , Christopher , “Unconventional Meeting of Minds,” “Term Limits for Judiciary Intriguing Idea,” Albany (Ga.) The Chronicle of Higher Education , Sept. 18, 2011 , chron Herald , Feb. 21, 2012 , www.albanyherald.com/news/ icle. com/article/An-Unconventional-Meeting-of/129048 /. 2012/feb/21/term-limits-for-judiciary-intriguing-idea /. Tea Party members say Americans don’t have to agree on what It is difficult to believe that the Founders expected Supreme a constitutional convention should do in order to call for one. Court justices to serve up to 40 years on the bench, says an editorial board. Electoral College Cohn , Douglas , and Eleanor Clift , “The Founding Fathers Lane , Charles , “Keep the Electoral College,” The Wash - Got It Wrong,” Evening Telegram (N.Y.), April 9, 2012 , p. 4 . ington Post , Jan. 24, 2012 , p. A19 , www.washingtonpost. Supporters of abolishing lifetime tenure for Supreme Court com/opinions/electoral-college-may-not-be-popular-but- justices say the current system does not create a politically it-works/2012/01/23/gIQApsj6LQ_story.html . free high court. The Electoral College helps stabilize U.S. politics by en - couraging a two-party system, says a columnist. Gillman , Todd J. , “Perry Is Building His Case for High Court Term Limits,” Dallas Morning News , Aug. 30, 2011 , Southwick , Albert B. , “Is Electoral College History?” p. A1 . Telegram & Gazette (Mass.), June 21, 2012 , p. A9 , www. Republican Gov. Rick Perry of Texas says lifetime tenure telegram.com/article/20120621/COLUMN21/106219838/0 . should be abolished for Supreme Court justices. The National Popular Vote movement doesn’t call for an amendment to the Constitution but provides an agreement CITING CQ RESEARCHER among states to bypass provisions of the Electoral College. Sample formats for citing these reports in a bibliography Tryon , Thomas , “Electoral College and Primary Systems include the ones listed below. Preferred styles and formats Need to Change,” Sarasota (Fla.) Herald Tribune , Oct. 9, vary, so please check with your instructor or professor. 2011 , p. A18 , www.heraldtribune.com/article/20111009/ COLUMNIST/111009658 . MLA STYLE The Electoral College skews the results of presidential elec - Jost, Kenneth. “Remembering 9/11,” CQ Researcher 2 Sept. tions because it does not allow Americans to directly elect 2011: 701-732. the president, says an opinion editor. APA S TYLE Prospects Jost, K. (2011, September 2). Remembering 9/11. CQ Re - Dinan , Stephen , “Don’t Hold Your Breath for a 28th Amend - searcher, 9 , 701-732. ment,” The Washington Times , Nov. 14, 2011 , p. A1 , www. CHICAGO STYLE washingtontimes.com/news/2011/nov/13/dont-hold-your - breath-for-a-28th-amendment/?page=all . Jost, Kenneth. “Remembering 9/11.” CQ Researcher , September Political gridlock in Washington makes any amendments to 2, 2011, 701-732. the Constitution unlikely anytime soon, says a political scholar.

www.cqresearcher.com Sept. 7, 2012 763 In-depth Reports on Issues in the News

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