Little will on Capitol Hill to alter Constitution

The Constitution remained unchanged for 40 years until the Progressive Era Congress proposed the 16th Amendment in 1909 authorizing a national income tax. That was followed in short order by the 17th Amendment (direct election of senators); the 18th Amendment (Prohibition); the 19th Amendment (voting rights for women); the 20th Amendment (setting a new inauguration date and a means of filling vacancies); and the 21st Amendment (repeal of Prohibition) in 1933.

The key, said Daniel Okrent, who has written “Last Call,” a rollicking account of the 18th and 21st amendments, was having a political majority pushing in the same direction.

For the Civil War and Reconstruction amendments, white Southerners had been disenfranchised, so Northern lawmakers could will their amendments through Congress. The Progressive Era is more complex, but even then the legislatures were dominated by rural and farming interests who favored the income tax and detested alcohol.

In the case of Prohibition, the political coalition was odd. It combined the likes of Progressives, women’s suffragists and the Ku Klux Klan, all pushing for the same cause, and was guided by the genius of Wayne Wheeler, who as the political mastermind of the Anti-Saloon League had the ear of governors, congressmen and presidents.

Mr. Okrent said that sort of coalition just isn’t in the offing in today’s political climate.

“I don’t think they could agree that Monday comes after Sunday. Of all times, certainly in living memory, never has the country been more clearly divided and unable to reach a consensus on any issue,” he said.

Mr. Okrent said the balance of political power that boosted Prohibition didn’t change until Supreme Court decisions in the middle of the last century enshrined the principle of “one man, one vote” and erased the rural domination of state legislatures.

In fact, the only time the state ratifying conventions have been used to adopt an amendment was for the 21st Amendment repealing Prohibition. Congress, wary that repeal wouldn’t make it through the still rural-dominated legislatures, specifically called for state conventions to consider the amendment, which was ratified in less than a year — at the time, the second-shortest ratification in history.

In the search for reasons for the current drought, some academics point to the rising power of the Supreme Court, saying the amendment process has grown rusty as advocates turn to the courts rather than Congress. Indeed, last week’s ruling by a federal appeals court made that point when Judge Laurence H. Silberman upheld President Obama’s 2010 health care initiative, saying it would have been unconstitutional in the founders’ minds, but not anymore.

“The Framers, in using the term ‘commerce among the states,’ obviously intended to make a distinction between interstate and local commerce, but Supreme Court jurisprudence over the last century has largely eroded that distinction,” the judge wrote.

Others argue that the country is merely in an amendment pause, just as it was before the Civil War and the Progressive Era, both of which produced a flurry of consequential amendments.

“Many people had given up on the efficacy of the process in the period from 1804 to 1865 and from 1870 to 1913, yet the process came roaring back in both cases, in one case as the result of the Civil War and in the other as a result of ideas associated with the Progressive Movement,” said Mr. Vile, the political scientist at Middle Tennessee State University. “The court has certainly played a more persistent role in constitutional interpretation than in some times in the past, but we have had consequential court decisions throughout our history, so I’m not sure the basics have changed.”

R.B. Bernstein, distinguished adjunct professor at New York Law School, said the long period of stasis since the last amendment owes more to the state of American politics and the issues facing lawmakers.

“There is no sense right now among the American people or among the politicians that there is some problem that requires an amendment,” said Mr. Bernstein, author of “The Founding Fathers Reconsidered.”

“Opening up the cases in the National Archives and adding text to the Constitution is a big deal. It’s serious. It’s one of the most serious things the American people can do. That’s why the founding guys made Article V so hard to use,” he added.

Story Continues →

© Copyright 2013 The Washington Times, LLC. Click here for reprint permission.