This interview was conducted prior to the U.S. Supreme Court’s recent decision to overturn Roe v. Wade.
“Constitutions are just paper,” says law professor Richard Albert, “and you need more than the paper to create a stable country.” He believes any disconnect between a constitutional text and the reality of the lives of its citizens will inevitably lead to the decay of democracy. The growing number of electoral autocracies in the world suggests this trend might be spreading.
The U.S. Constitution, Albert says, “was wrong the day it was created.” It was designed to be amended, with one exception: it specifically protected the slave trade and made it immune to amendments for two decades. This shameful history, he believes, has affected every aspect of the Constitution and affects the lives of Americans to this day. Albert says it’s vitally important that we be able to amend the Constitution, but the process for doing so is broken. More than twelve thousand amendments have been proposed in Congress, and only twenty-seven have been ratified.
Born in Quebec to a Trinidadian father and a Haitian mother, Albert spent time in Haiti as a child after his parents divorced. Later he returned to Canada and graduated from high school in Ottawa. He entered Yale University as a premed student, but when he couldn’t stomach dissecting a frog, he switched to law.
Now in his forties, Albert is the William Stamps Farish Professor in Law, Professor of Government, and Director of Constitutional Studies at the University of Texas at Austin. He holds law and political science degrees from Yale, Oxford, and Harvard and is the author of Constitutional Amendments: Making, Breaking, and Changing Constitutions (richardalbert.com). He has served as a visiting professor in Brazil, Canada, Colombia, Ecuador, India, Indonesia, and Israel, convenes international conferences in public law, and still finds time to weigh in on the American political and legal scene on social media (@RichardAlbert on Twitter).
We met via video chat in early December 2021, when he was a visiting professor at the University of Ottawa. At times I felt like I was back in college, hearing a lecture from my favorite professor. Before we parted, we talked a bit about Austin music and food. Albert was eagerly anticipating his return to UT so he could eat at Black’s Barbecue, a Texas culinary institution.
Leviton: You have written that having rules to amend a constitution helps “stabilize” the document. But by including an amendment process in a constitution, aren’t the authors admitting the document is inadequate or incomplete in some way?
Albert: When a constitution’s authors choose to put amendment procedures in the text, they’re revealing that they’re not quite sure how their creation will work out. And so, as a kind of insurance, they put in clear rules for how their successors might update the constitution when the circumstances warrant. The typical constitution is fully amendable, but there are also constitutions that are, either in part or in whole, unamendable, meaning that you can’t change them through lawful means, because the designers have said, “We think it’s perfect as it is.”
The first example of such a “perfect” constitution was written in 1669 by John Locke, for a region of the world The Sun’s staff knows well: North Carolina. The Fundamental Constitutions of Carolina were made by Locke to be unamendable; they were meant to endure for all time. It didn’t work out that way, but that was the intent. [The document was also meant to ensure a feudal system and to prevent democracy from forming. — Ed.]
Leviton: The U.S. Constitution has been in effect for more than two hundred years, but you point out that the average constitution worldwide lasts about nineteen years.
Albert: Nineteen years is a global average across history and includes constitutions that lasted for just a year, or even a month. The average life span of a constitution in a democracy is forty-three years. These numbers were generated by my colleagues Tom Ginsburg, Zachary Elkins, and James Melton, who’ve written a fabulous book titled The Endurance of National Constitutions. The nineteen-year number is interesting because Thomas Jefferson suggested that constitutions should be rewritten every generation, which he defined as every nineteen years.
Leviton: How and why are constitutions replaced? Is it always through revolution?
Albert: More often a movement builds to replace the constitution through legal means. But if the constitution proves to be unchangeable — because it’s hard to amend, or because the incumbents don’t want to change it, or because reverence for the constitution creates a resistance to replacing it — then that yields a revolution in some cases.
Leviton: Conservatives often refer to “original intent” in trying to figure out what laws might be constitutional or not.
Albert: Originalism — also called original intent — as a theory of constitutional interpretation doesn’t belong exclusively to conservatives. In recent years liberal or progressive constitutional scholars have insisted that they practice originalism, too. And their originalism can justify judgments like Roe v. Wade, which form the progressive vanguard of constitutional law.
Leviton: Since we have a constitution that allows for amendments, wasn’t the original intent that the constitution would change in the future?
Albert: Well, conservative originalist scholars will say they recognize as valid only those constitutional changes that are made using the procedures of amendment. This means they look askance at what they consider major changes to the Constitution made by judicial interpretation, for example.
Take the abortion argument that’s before the Supreme Court right now in Dobbs v. Jackson Women’s Health Organization. The Constitution and its amendments are all silent on abortion. So in the Roe v. Wade ruling, a woman’s right to procure an abortion was not based on the “right to abortion.” It was based on the right to privacy, which the Supreme Court said is located in the liberty protection in the Fourteenth Amendment’s due process clause. Now, we have to take a number of inferential steps to get there. The Constitution refers to “liberty,” which has been interpreted to mean a protection of fundamental rights. And one of those fundamental rights is the right to privacy. And the right to privacy includes a woman’s right to make choices about her own body and the life that she wants to lead.
Conservative scholars who really care about the primacy of the text recoil at that interpretation. Much better, they say, to put the right to an abortion in the Constitution using the procedures of amendment. This is why, in the Supreme Court hearings for Dobbs v. Jackson Women’s Health Organization, the conservative justices were asking, “Where is the right to abortion rooted? Is it in liberty? Is it in privacy? Is it a right unto itself? And where is that in the Constitution?” They’re trying to pin down the argument so that, in this case or some future case, they can beat it down.
Leviton: I seem to recall that Justice Ruth Bader Ginsburg said rooting Roe v. Wade in privacy was not optimal.
Albert: She was such a brilliant advocate and jurist. She was also very attuned to politics, and she knew the havoc it would create to use privacy as the root of the right to procure an abortion. As a progressive, of course, she was fully behind the right to procure an abortion. But as someone who was aware of the political dynamics of the time, she knew that there would be trouble ahead.
Leviton: So for an originalist, the legitimate way to settle the question, short of a constitutional amendment, is for Congress to pass a law making abortion legal or illegal?
Albert: Partly yes, partly no. Yes because the view of many who oppose Roe v. Wade is absolutely that if legislatures want to authorize abortion, they can do so — just pass a law. But not all legislatures; only state legislatures. By my reading of the Supreme Court’s current interpretation of the Constitution — and I don’t think this is a controversial reading — Congress does not have the jurisdictional authority to pass a law regulating abortion, because it would have to connect that law to the commerce power found in Article One, Section Eight of the Constitution. When Congress tried to make that connection for the Affordable Care Act, the argument didn’t win the day. In fact, it was ultimately the federal government’s taxing power that gave Congress jurisdictional authority for the ACA, not the commerce clause.
So if you want to create the right to an abortion, it’s going to be at the state level, because states retain powers over health, welfare, and morals, and I think everyone would agree abortion falls into one or more of those categories.
Leviton: This touches on the federalism-versus-states’-rights argument at the founding of our nation. First there were the Articles of Confederation, and then came the Constitution, but it took a few years to be ratified because of an argument about the Bill of Rights, correct?
Albert: There are a number of different threads in the story of the creation of the U.S. Constitution, but the question of constitutional amendments is front and center.
The Articles of Confederation were America’s first Constitution, at a time when a loose association of former colonies were coming together to create this national entity that would have limited powers to handle national defense, minting coins — things you would want to harmonize across the states. But almost as soon as the Articles of Confederation came into force in 1781, there were efforts to amend it. There were proposals, for example, to tear down trade barriers among the states, because it’s hard to strengthen the Union when you have tariffs and trade wars. There was also no assurance in the Articles that rights would be protected. At the time, “natural law” said that certain rights were inherent in the very nature of being a person. Think of the Declaration of Independence’s “unalienable rights.”
Amendments were proposed to fix the problems under the Articles of Confederation but failed at every turn. Why? Because the Articles of Confederation were even harder to amend than the U.S. Constitution. You needed unanimous agreement among the thirteen states. That meant a single state could veto an amendment supported by the other twelve.
Finally the new Continental Congress convened a convention of luminaries from each of the states, inviting them to gather at the statehouse in Philadelphia to come up with a plan for how to amend the Articles of Confederation and save the Union. But, soon into their deliberations, the delegates decided to scrap the existing Constitution and create an altogether new one, ignoring the unanimous vote required by the Articles and ignoring the charge they’d been given by the Continental Congress to gather for the “sole and express purpose” of revising the Articles. So you see, they were breaking the rules!
The Constitution they ended up creating would become effective once ratified by just nine of the thirteen states, a much lower threshold than was required to amend the Articles. Not only that, but part of the deal for ratifying the U.S. Constitution was the addition of a Bill of Rights as soon as possible. The new Constitution was written in 1787 but fully ratified only after some states demanded the protection of individual rights. So the authors broke the law of the Articles of Confederation, disregarded the charge issued to them by the Continental Congress, and proposed a Constitution that did not include everything everyone wanted. The first order of business after the Constitution came into force was to amend it to add the Bill of Rights.
When you look at what can’t be changed, you see what people care about, and in the United States that was the slave trade, America’s original sin. It really does seep into every single nook and cranny of the American Constitution.
Leviton: Not all the states wanted the slave trade to be protected by the Constitution, so a compromise had to be made. This is how we got the three-fifths clause, which says that three-fifths of the slave population would be counted for determining direct taxation and representation in the House of Representatives. Enslaved people had no rights, but they counted when it came to increasing the power of the Southern states in Congress.
Albert: Yes, America has a slavocratic Constitution. It did when it was written in 1787, and it does now in 2022.
When I look at constitutions from around the world, I always check the rules of amendment first. They’re a window into the soul of a nation, because in any modern constitution, you’re likely to see rules about what is unamendable. A constitution will often say, “Don’t touch this or that.” Germany’s, for example, says that human dignity is unamendable. Brazil protects federalism. In Turkey you can’t amend the secular character of the state. In the Czech Republic you are prevented from amending the democratic nature of the state. So we see lofty ideals being protected, ones that reflect the core values of the nation and its people.
The U.S. Constitution made the slave trade unamendable. Also unamendable was a “capitation tax” that was related to the slave trade.
My point is that, when you look at what can’t be changed, you see what people care about, and in the United States that was the slave trade, America’s original sin. It really does seep into every single nook and cranny of the American Constitution and of Americans’ lived experience to this day.
Of course, the slave trade is over. But those rules still appear in the text of the U.S. Constitution. To this day it says this class of people don’t amount to full persons. The fugitive slave clause is still in the Constitution today. It says if an enslaved person runs away to freedom and is captured, the original “owner” is entitled to that slave’s return, by any means necessary.
So although some people look at the U.S. Constitution and see this beacon of freedom and liberty, this light unto the world, I look at it quite differently — and not just because of my skin color, but because America’s slavocratic Constitution has done great violence to the people of America, and to the world. For better and for worse, America’s Constitution has served as a model to many other countries.
Leviton: So although the Thirteenth Amendment outlawed involuntary servitude, it could not remove the three-fifths and fugitive-slave clauses because those were in a kind of constitutional lockbox?
Albert: Yes. There are three different models for how to indicate a constitution has been changed: You can place the new amendment at the end of the text. You can integrate the amendment into the existing text but indicate by footnote what has been changed, and how, and when. Or you can insert the amendment into the constitution without any indication of what, when, or how.
The United States uses the first model. Amendments are appended at the end of the text chronologically. Everything that comes before remains untouched.
This was debated at the creation of the First Amendment, in the heat of the moment, but the method should have been laid out when the Constitution was created, before passions had been aroused, when people could have thought calmly and deliberatively about what was best: Will you at some point want to erase part of the Constitution? Do you want to have a more lawyerly document that has footnotes, so people can see what was there before and how it differs from what is there now? The founders rejected those options. So when the Thirteenth Amendment came around in 1865 and changed a lot of the meaning of the Constitution, there was no choice but to append it to the end and leave in the text all the rules that it undermined and made obsolete. So in today’s Constitution you’ll find these outdated, obsolete rules that have no legal effect, but they still have a cultural, social, and political impact.
Imagine you’re a teenager, of any gender, any race, and you’re reading the Constitution. You’re going to read that a woman can’t be president! Article Two: the executive power speaks only of “he” or “him” in connection with the presidency. So you, as a female-identifying person, may think, Wait, I can’t be president? Or you, as a male-identifying person, may think, My sister can’t be president?
I’m not the only one who thinks this should have been avoided. James Madison proposed that amendments should be integrated into the text of the Constitution. He had two reasons: One, so that when you read the text, you’re not confronted with obsolete laws. And two, so that you don’t have a debate later on about what the amendment means. You know its meaning right away by reading the text of the Constitution, because the change is inserted at the right place.
One reason why the United States has such a powerful judiciary — and a powerful Supreme Court specifically — is because the courts do the work of harmonizing the meaning of the amendments with the original text. That’s not done by political actors in the legislature, or the executive branch, or the states, or by the people. It’s done by the Supreme Court.
Leviton: In the 1803 case Marbury v. Madison the Supreme Court first asserted its authority to decide what was unconstitutional. Is that right?
Albert: Marbury v. Madison is a watershed moment in the history of the United States, and also the history of the world, because here you have an instance of the Court establishing the power of the judiciary to interpret the Constitution as a final matter, with no other body being able to say no. The Court asserts itself as the supreme and preeminent interpreter of the Constitution, which means it can say to the president, “No, you cannot do that,” and to the legislature, “No, you cannot do that,” and to the states, “No, you cannot do that.”
It’s such an important case. Because when you read the text of the Constitution, you don’t come away thinking, Oh, yeah, the Court can do that. In the text the Court is supreme in name, but Marbury makes the Court supreme in fact.
In American history there have been four or five occasions when the constitutional amendment process has been used to overturn a Supreme Court interpretation. So, in a sense, the people are supreme, but that’s romanticizing it a bit. It’s been generations since it has been realistically possible to amend the Constitution, especially on matters of national importance or issues that end up dividing the country. So the Supreme Court today is indeed supreme. There is no chance an amendment could be passed that would overturn a court decision. The closest the modern United States has come to even thinking about doing this was in 2010, with the Citizens United case, which opened the floodgates to big money in politics — so much so that newly elected president Barack Obama, in his State of the Union address, called for Congress to overturn Citizens United. It didn’t go anywhere, of course. I think the last time it would have been possible to pass an amendment might have been in 2001, in the aftermath of the attacks of September 11, when the country came together in a way that its people have not seen since, and had not seen for a long time before that.
The Court asserts itself as the supreme and preeminent interpreter of the Constitution, which means it can say to the president, “No, you cannot do that,” and to the legislature, “No, you cannot do that,” and to the states, “No, you cannot do that.”
Leviton: I want to ask about the Equal Rights Amendment [ERA], which was ratified by Virginia in 2020. At that point it reached the necessary threshold of thirty-eight state ratifications. Why didn’t it become law?
Albert: At the time it was passed, in 1972, it certainly seemed like it had a good chance to be ratified. I think people had high hopes for it. It says, rather simply, “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” But the resolution in Congress proposing the ERA included a seven-year time limit for states to ratify it. If it wasn’t ratified by 1979, it would expire. It got off to a great start, but then there was concern that the amendment would expire before it got to the magic number of thirty-eight state ratifications. So Congress extended the deadline to 1982.
That year came and went, and the ERA was stuck at thirty-five state ratifications. At the time, everyone — those who were against the amendment and those who were for it — agreed the chance to ratify had been lost. The amendment had expired.
But then something interesting happened. In the 1990s and 2000s states kept ratifying it. Meanwhile five states — including Tennessee and Idaho — rescinded their earlier ratifications. Then in January 2020 the Commonwealth of Virginia became the thirty-eighth state to ratify the ERA. And people were saying, “It’s official, isn’t it?” Well, no, because the expiration date remained 1982, and then there was the question of those states that had rescinded their ratifications: Could they do that? Of course, the advocates of the ERA took the position that they couldn’t.
The first question, though, was more difficult. On the one hand, proponents of the ERA pointed out that Congress had extended the deadline once — surely it could do so again. Opponents, on the other hand, said the first extension itself was unconstitutional, because there was no justification and Congress wasn’t authorized to grant it. They had to make this argument, because if the first extension is valid, then how can a second be invalid?
There is now a bipartisan effort in the Senate to remove the expiration date through a joint resolution that the House of Representatives authorized in 2021 by a 222–204 vote. The Senate bill has not yet been acted upon.
Leviton: Given the gridlock in the Senate, it’s hard to see how it can pass. Right now we have fifty senators who caucus with the Democrats and fifty with the Republicans. Of course, those Democrats represent 43 million more citizens than the fifty GOP members. At the time the Senate was invented, population disparities in the thirteen colonies were not nearly as wide as they are between the states today. I wonder how the founders would view this. Would they agree to move the Senate to proportional representation like the House?
Albert: There is an argument to be made that they would, but I believe the point is moot, because passing an amendment to change the Senate would be even harder than passing a typical amendment. Article Five tells us if you’re going to change a state’s representation in the Senate, you need the consent of that state. This is a built-in protection against more-populous states ganging up on the less-populous ones and taking away one of their senators. It’s impossible to imagine a state like Wyoming, for example, ever letting anyone take away one of its senators.
Leviton: We’ve been talking a lot about what’s legally possible, but you have also compiled a number of examples of illegal changes to the Constitution, including during the founding of the country and the Reconstruction following the Civil War.
Albert: It sounds shocking, but it’s true. There’s a history in the United States of violating the rules for amending the Constitution. The procedures in Article Five are quite clear about what you can and can’t do, yet they were not followed during Reconstruction.
The Reconstruction was an effort to bring the Union back together after the Civil War and the secession of the Southern states. The Reconstruction is also when the country adopted the Thirteenth, Fourteenth, and Fifteenth Amendments. In high-school civics classes and college courses and law school you are told that these amendments were made in conformity with Article Five, which requires the approval of two-thirds of both houses of Congress and three-quarters of the states. But that’s not true. Why? The Congress and the president required the Southern states to ratify the Reconstruction amendments as a condition of their readmission to the Union. Which raises the question: How could they ratify if they were not part of the Union?
Leviton: Are you saying the Southern states didn’t “have standing” to vote?
Albert: Correct. They weren’t valid participants in the amendment process. They had seceded.
Leviton: But didn’t the North argue that their secession was illegal, that they had never actually left the Union?
Albert: Yes and no. The Southern states were not allowed to vote in the Congress to pass the amendment, but they were forced to vote to ratify the amendment. How can they do one but not the other? You’re either in for both or out for both. And from their perspective they were ratifying at gunpoint. They had no choice.
Bruce Ackerman, a great constitutional historian, introduced this argument in his book We the People. He makes this case systematically and meticulously, going back to the Congressional Record.
The point is that there’s a thread running through American history of illegality in the revision of the Constitution, whether it’s at the founding, when the rules in the Articles of Confederation were ignored, or whether it’s during the Reconstruction, or whether it’s the current attempts to ratify the ERA. But, let me be clear, illegality is not the same as illegitimacy. Each time this has happened, we see illegality but also legitimacy. At the founding there was a retrospective validation of the rule-breaking when the states chose to ratify the new Constitution with open eyes. The people were choosing to adopt new rules. Of course, it wasn’t all the people. Certain people in the United States weren’t given a voice. Women weren’t included. Enslaved persons weren’t included. So there’s a qualification there.
The Reconstruction, too, was illegal but legitimate. And if the ERA is passed, I suspect some will argue that its passage is illegal, because the deadline extensions were illegal, but it is nonetheless legitimate to recognize equality across gender lines.
You know what? This history of illegality with legitimacy could hold the key for the salvation of the Union. By which I mean, there are many challenges standing in the way of the United States going forward. The Constitution is broken today, because it’s frozen; no one can amend it.
Drawing on the precedents of the nation’s founding and the Reconstruction, on this tradition of rule-breaking, I can imagine a motivated president, a motivated Congress, and state actors joining together to discard the iron chains of Article Five, to reform the Constitution, and to do the things that need to be done. Even though they would be engaging in illegality, the outcome would be legitimate.
Leviton: What about the Supreme Court? Can you imagine a president or Congress going to the Supreme Court and saying, “This is what we’re thinking of doing. Is it constitutional? Can we do it?”
Albert: No. The Supreme Court is supreme, but it, and all federal courts, have handcuffed themselves willingly when it comes to questions of constitutional amendment. What I mean by that is, the U.S. Supreme Court has created the Political Question Doctrine, which requires federal courts to stay away from questions dealing with things like congressional self-governance, foreign affairs, war powers, and constitutional amendments. The Court is essentially refusing to get its hands dirty with politics — unless it’s an exceptional circumstance. And who can decide to make an exception? The Court itself.
Leviton: I immediately think of Bush v. Gore, the Supreme Court decision in 2000 that decided a presidential election.
Albert: The Court intervened in that election even though there was clearly a statutory process for resolving the dispute about who was going to be president. The Court broke its own rule. So on paper there’s a rule that says the Court won’t get involved in questions touching on constitutional amendments — but it could decide to break that rule.
There’s a second reason, though, why the Court is unlikely to get involved in the way you mentioned: the Court doesn’t do hypothetical questions or give advisory opinions. So unless there’s a real dispute that a legal proceeding can resolve, no federal court is going to answer a hypothetical question about constitutionality.
The third and final reason why this is unlikely to happen — according to what we know today; who knows about tomorrow? — is that in the past, when the Court has been asked whether an existing amendment to the U.S. Constitution is unconstitutional, the justices have said it’s not within their power to determine the constitutionality of an amendment that has been properly passed by the Congress and properly ratified by the states. Even if the amendment were to be added illegally, as I’ve described, it’s over. There is nothing more to be done. The Court’s power has reached its limit, and it cannot — and wouldn’t want to — do anything to change the outcome.
Other supreme courts around the world, however, have invalidated amendments to their country’s constitution, both after the amendments had been made and before they’d been passed.
Leviton: Advisory opinions can be useful for the smooth functioning of the government. It’s not unusual for Senate leaders to ask the parliamentarian for an opinion regarding whether Senate rules allow a certain policy to be voted on through the “reconciliation” process.
Albert: It’s not like it hasn’t been tried. Early on in American history the secretary of state asked the Supreme Court for an opinion on a matter of foreign affairs, and the Court declined to give an opinion, because it would have had negative consequences for the Court if the Court had said, “We think this is improper,” and the official had gone on and done it anyway. What would that have done to the Court’s standing?
Still, some state supreme courts do give advisory opinions to the governor, even though it’s possible the governor won’t follow the court’s advice.
Leviton: So in many respects we have a dysfunctional system. The mechanisms to correct and update the Constitution are not functioning the way the founders envisioned. The country continues to grow polarized, and few people seem to be happy with all three branches of government. What can be done?
Albert: The procedure for amending the Constitution is the same now as it was in 1787, but back then it required just ten states to agree — around three-quarters of the thirteen. Today there are fifty states, and three-quarters means thirty-eight. It’s the same proportion, but the number of states that need to agree is much higher. That’s one reason why the Constitution has grown harder to amend. The framers did imagine a country with more land and more states, though. They wanted to expand the Union.
Another reason is the polarization you mentioned. Division in the country is probably at its highest point since the Civil War. Polarization multiplies the difficulty of reaching agreement.
Politics plays a huge role. Between 1913 and 1920, during the Progressive Era of the United States, four constitutional amendments were ratified. There was so much amendment activity at the time that politicians proposed amending the Constitution to make the amendment procedure harder. Politics have changed. Today I don’t think any reasonable person would propose an amendment thinking that it’s going to pass. Yet every day someone’s proposing an amendment. Whether it’s in the Congress or in a state legislature, there are amendments being proposed all the time: a balanced-budget amendment, for example, or an amendment to overturn Roe v. Wade, or to overturn Citizens United, or to get rid of the Electoral College. There have been approximately twelve thousand amendments proposed in the U.S. Congress. Only twenty-seven have been ratified. Ten of those were done at one time — the Bill of Rights — and two involved instituting Prohibition and then repealing it. Should we even count the Twenty-Seventh Amendment, which was passed in 1789 but ratified in 1992? [The amendment says that any law raising or reducing legislative salaries can’t go into effect until after the next House election. — Ed.] Some argue that this amendment was ratified illegitimately, because the states ratifying it in 1992 were not having the same contemporaneous conversations as others that ratified it when it was first passed two centuries earlier.
By the way, there’s an interesting story behind the Twenty-Seventh Amendment: In 1982 a University of Texas at Austin student named Gregory Watson wrote a term paper on constitutional amendments that had been passed but not ratified. I think there had been six. He took special interest in one that said Congress couldn’t give itself a raise without there being an intervening election. He thought it was a good proposal and wondered why it hadn’t been ratified. So he started a self-financed effort to get it ratified, writing letters to representatives and publicizing it. And it was ratified as the Twenty-Seventh Amendment. But he only got a C on the paper! Watson’s professor said she wasn’t convinced the amendment was still pending and proclaimed it a “dead letter.” If there was ever a college paper that did not deserve a C, that’s it.
So the U.S. has one of the most difficult constitutions to amend in the world. In light of these obstacles, what are the possibilities for reform? I don’t think they’re promising — at least, not at the present moment, when you can’t even get Congress to agree on a simple law.
It’s more likely that change could happen through a constitutional convention, where instead of a two-thirds vote in Congress, representatives from thirty-four states ask Congress to call a convention where they can gather to debate a proposed amendment. It might be possible if the states coordinate their activities and the language of the congressional petition that each of them proposes. When they send it to the Congress, they really want to make it impossible for Congress to say no.
Leviton: That sounds hard to manage. And, of course, everybody on both sides worries about a convention being called. I don’t want to have a convention if someone is going to propose making Christianity the national religion, for example.
Albert: You’re right that, if the convention model were somehow triggered, there’d be concerns about what kind of amendments would be proposed. But whatever is proposed still has to be ratified by three-quarters of the states. If you find a proposed amendment repulsive, it’s likely many others will, too.
The Constitution is a living organism. Even though it’s frozen in its text, it’s ever evolving in its meaning and its operation. Think of what happens when the Supreme Court interprets the Constitution. It’s changing the meaning of the Constitution, even though it’s not changing the text. That’s one way to reform the document — let the Court do it.
And, indeed, the Court has done it many times before. If you look at the history of the congressional commerce power, probably the Congress’s most significant source of authority, there have been some eras in American history when the Court has really clamped down on what the Congress can do with that power, resulting in a weak Congress and strong states. And there have been other eras when the Court has given wide latitude to the Congress to use its commerce power, diminishing the power of the states. All that was done not by amendment but by judicial interpretation.
Brown v. Board of Education [the 1954 decision declaring school segregation unconstitutional — Ed.] had the same effect as an amendment to the Constitution. It’s a judicial opinion that changed the landscape of the country. Compare Brown v. Board of Education to the Twentieth Amendment, which changes the date of the president’s inauguration from March 4 to January 20. Which had a bigger effect?
(The reason why the inauguration date changed, by the way, is because the presidents-elect were no longer having to ride on horseback to the Capitol; they could take a train.)
Besides judicial opinions, there are other ways American political actors have kept the Constitution current. Sometimes Congress has passed laws that have had Constitution-level effect. Scholars call them super statutes. They’re passed using the ordinary procedures of congressional decision-making, by a simple majority, and they’re repealable by simple majority, but they don’t often get repealed, because it’s toxic for politicians even to talk about touching them. For example, the Social Security Act. Can you imagine getting rid of that? That’s writing your own death warrant if you’re a member of Congress, because you’re not going to get reelected. It might as well be in the Constitution.
Can you imagine Congress repealing the Civil Rights Act of 1964? No. It’s a super statute, just like Social Security. So that’s another way of working around the iron cage of Article Five.
Leviton: Aren’t there other work-arounds, like the effort to leave the Electoral College in place but diminish its importance?
Albert: Yes, the states could pass laws that require them to give their electoral votes to the winner of the national popular vote. That’s called the National Popular Vote Interstate Compact (NPVIC). It has a “first mover” problem, however: It’s not going to gain momentum unless the vote-rich states like Florida and Texas come on board. Then the other states will have no choice but to do the same if they want to stay relevant.
Leviton: One obstacle to getting rid of the Electoral College is that it is very much in the interest of Republicans to keep it. The last two Republicans to win a majority of the popular vote in a presidential contest were George H.W. Bush in 1988 and George W. Bush in 2004. And with voter-suppression laws coming from Republican state legislatures and continued gerrymandering, we’ve got an anti-democratic trend — or, at least, less democratic.
Albert: I think you were right the first time, when you said “anti-democratic.” I would argue that the U.S. Constitution itself is undemocratic, period. And I think if you could ask those who wrote it, they’d say it’s undemocratic by intent. This is a small-r republican Constitution, not a democratic Constitution.
Leviton: So the system is functioning as intended. It favors elites, favors the wealthy, favors white men, and always has.
Albert: Absolutely right. And it’s doing a lot of damage to the United States. It has done damage to the world as well. Hitler’s Germany was inspired by U.S. Jim Crow laws. South African apartheid laws were inspired by similar laws in the United States. The U.S. Constitution, rooted in this slavocratic structure, and in eugenics and racism, doesn’t end at the border. It really has a transnational impact.
Leviton: I suppose, in the long view, we may be experiencing the decline or dissolution of a once-great empire. It’s like we’re living through the fall of Rome, or the decay of the British Empire.
Albert: It could very well be that the grand American experiment in liberty and freedom is unraveling. Now, people have said this in the past, and America sprang back. The country is very resilient. But I think this time feels different; it looks different. It’s almost as though the United States were multiple countries in one. The easiest solution, as radical as it is, might be to create five separate countries, or whatever the right number is. But that’s not a realistic answer.
So what can be done? One small-scale solution is sunrise amendments. I wish I’d thought of this first, but it was proposed in an article called “Make Me Democratic, but Not Yet,” by David Grewal and Daniel Herz-Roiphe. Here’s the concept: an amendment or law is passed today, but it doesn’t come into effect until sometime in the future — ten years, twenty years, twenty-five years. The idea is to separate the actual reform from the politics of the moment. That way you don’t know who’s going to lose and who’s going to gain from the change. Today you might know, but in twenty-five years the situation might be reversed. If you’re a politician and you recognize there’s a problem, but you also don’t want to jeopardize your own standing today, you just say, “Well, let’s agree that this will come into effect X years from now. Let future generations deal with it.”
I think that’s a good suggestion. It breaks the gridlock that’s strangling democracy. Realistic? No. But you’ve got to think creatively about how to free the country from the iron chains of Article Five.
There have been approximately twelve thousand amendments proposed in the U.S. Congress. Only twenty-seven have been ratified. Ten of those were done at one time — the Bill of Rights — and two involved instituting Prohibition and then repealing it.
Leviton: Is there anything else that might help save democracy?
Albert: There’s a more radical idea that draws inspiration from the history of illegality in American constitutionalism: an inspired president could go directly to the people, drawing from the popular-sovereignty foundation of the U.S. Constitution, and say, “Our Constitution is broken. I want to fix it; you want to fix it. We all have different views of everything we want to change, but let’s agree to change this specific thing, because it’s the right thing to do.”
The president puts it directly to the people to vote in a referendum that will change the Constitution. And she pledges to treat a successful referendum as a valid change to the Constitution.
Leviton: Wouldn’t this be subject to legal challenge?
Albert: If the referendum passed, I suspect that someone would challenge it in court. But remember, the Supreme Court doesn’t get involved in amendments. When faced with an overwhelming expression of popular support for a change, is the Court going to say, “No, that’s unconstitutional”? Or is it going to recognize the legitimacy of this referendum?
French president Charles de Gaulle did this in 1962 to change the way France’s president is elected from an electoral college, like in the U.S., to a direct presidential election. The French parliament at the time opposed the change because it would strengthen the executive branch at the legislature’s expense. So when de Gaulle first called for the amendment, the parliament refused to propose it. Then he went over their heads directly to the people.
I think the referendum idea fits well within the American tradition of illegality and retrospective popular validation. But which president? Which amendment? What reform?
Leviton: I’m thinking about dictators like Hitler or Pol Pot or Mussolini or Mao who have said, “There’s a crisis, and only I can solve it.” In the 1930s Weimar Germany was in crisis. No political party could gain a majority or govern effectively, and many Germans turned to Hitler, even though he’d never won an election. He certainly broke the political gridlock, but it didn’t work out well.
Albert: I mean, that’s an argument against it. I think there are parallels with Weimar Germany. And it’s unfortunate that this is where Americans have to look for solutions — in these foreign models where there was deep illegality, and in some cases profound injustice followed.
But I’ll bet you could think of a president you would want to lead such an effort.
Leviton: You’re on a research leave from UT. Are you writing another book?
Albert: Right now I’m studying how constitutions come into being and how they fall out of existence. I’m curious about whether there are global patterns in the forces that lead not only to the creation, but also to the destruction of constitutions, and what that might teach us about the U.S. Constitution today, and how we should design the constitutions of tomorrow.
Leviton: We have a blessing and a curse: a document that has sustained a coherent country for more than two hundred years but is also beginning to show its age.
Albert: You can praise the founders for making a document that has gotten you this far, but the way Americans interact with each other now has made it clear that the Constitution perhaps was never deserving of all the praise that it’s gotten. Plessy v. Ferguson, the Supreme Court ruling that said segregation did not violate the equal protection clause of the Fourteenth Amendment, was wrong the day it was decided, and it was law for more than fifty years. I think the Constitution was wrong the day it was written, because it entrenches injustice and inequality. And although there’s great genius in the structures of government that it created, that doesn’t excuse the unhealthy social dynamics that it embedded in the fabric of the United States.