Author (or Editor): Vile. John 

Title: Contemporary Questions Surrounding the Constitutional Amending Process

Fiction? Anthology?  

Publisher:  Praeger

Date:  1993

ISBN:  ISBN 0-275-94541-3  LC Catalog 92-41606

Series Name:

Physical description: hardbound

Relevance to doaskdotell:  constitutional amendments; bill of rights

Review:

Book Review- John Vile on the Constitutional Amending Process

Contemporary Questions Surrounding the Constitutional Amending Process, by John R. Vile

Published by Praeger (London, UK and Westport Conn.), 1993

What? A British publisher pushing a rather shocking (at least in implication) work about the US Constitution?  Perhaps so, as the British "constitution" is so much more informal.

In fact, a quick check of amazon.com of author = "John R. Vile" displays a long list of works, many dealing with the substance of and possible changing of the United States Constitution. For example, there is a title Rewriting the United States Constitution.

As a starting point of discussion, we reproduce the text of Article V of the United States Constitution

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.  (Emphasis added.)

And this text gives a clue as to why the subject of constitutional amendment is critical to the promotion of  and defending individual rights.  Major changes to the Constitution may not be overly likely, but they are thinkable, and the possibility could appear suddenly and unexpectedly, and cause possibly major chaos.  Particularly controversial would be the "state convention" method, which has never yet been used but which could become a major sleeper for pressure groups (especially conservatives) with an "agenda."

Imagine a scenario for another Disney-Touchstone "The Insider" type of film.  Conservative Republicans capture the White House and maybe one house of Congress in 2000.  The feel their oats, and imagine they can get a "Right to Life" amendment through, ending practically all abortion and overturning Roe v. Wade. They don't relish a floor vote in either house of Congress on an amendment, but prefer to be more clandestine, almost in the mood of John Grisham, Tom Clancy, or Vince Flynn.  The reconnoiter the 30 some states who had called for a convention on the Balanced Budget Amendment (some of these resolutions may still be good), then get some more state legislatures  to pass a convention call for a RTL amendment.  Then they maintain that they can combine the states for an "open convention" (or a "revolutionary convention" or a "runaway convention").  Or perhaps they go back to some of the Balanced Budget states and get them to pass on RTL.  Can this really happen?  Or could we have a call, say, based on eliminating the Income Tax (and replacing it with nothing)?

Or would a convention call be limited to just one issue?  Vile urges an interpretation of moderation.  Since the "second method" was intended to give the states the appropriate power in the amending process, the states surely have the legal right to limit the scope of such a convention.  Indeed, Vile mentions, on p. 68, a Constitutional Convention and Implementation Act of 1991, without making it clear whether this bill really passed.  It is not clear (Marbury v. Madison again) that Congress can take the power to "interpret" the amending process spelled out in Article V from the Judiciary.  Moreover, some scholars (such as Yale's Charles Black, Jr., who wrote about this in the 1960's and early 1970's) claim that the text (note emphasis above) of Article V would prohibit "limited conventions" as would historical precedent (from the 1787 convention record); others, such as William Van Alstyne at Duke maintain that the founding fathers intended to give enormous deference to the states their construction of any convention, to balance those of a federal government.

Vile presents a number of other controversies, which may seem more peripheral.  For example, he asks whether "any constitutional changes [can] be adopted without using Article V."  He discusses the notion of judicial activism and "court made law" which many feel facilitated the New Deal.  Some of the discussion resembles Morton Kaplan's notion of the use of cultural tradition or assimilation may in certain limited ways justify the Supreme Court's "Interpretation" of the 14^th Amendment due process clause to "invent" new fundamental rights.  (A famous example is the doctrinal change of Plessy v. Ferguson of "separate but equal" to Brown v. Board of Education, "outlawing" segregation in public schools.)  I cover this in my  Bill of Rights 2  essay DADT II, Chap 3). He discusses the book We The People: Foundations (1992) by Bruce Ackerman, in which Ackerman proposes (as did I in DADT) expanding the Bill of Rights, but to the extent of including what are normally regarded as "social rights" rather than (potentially) "fundamental rights" (although Ackerman apparently feels they may be derived from the equal protection clause of the 14^th Amendment).  Ackermann thinks that Article V should be changed to allow ratification by popular vote in two successive presidential elections. 

There are also discussions of "non-Exclusivity," that the Constitution implicitly may engender other mechanisms for amendment.  For example, Akil Reed Amar proposes that Congress is empowered to submit amendments to popular ratification or could be constitutionally obliged to call a convention by popular vote.   Amar's ideas seem rooted in subjectivity, noting the "extra-legal" means of rewriting the Articles of Confederation and the idea that the American Revolution gave rise to the notion of popular sovereignty.  There is little support for this view.   And there are the practical dangers of a "tyranny of the majority," say, to bring back a "Christian nation."

Vile also spends a chapter on limitations of what may be amended, and whether some amendments could be illegal (they certainly can be at the state level, as with Romer v. Evans).

Vile's prose and presentation often seems to ramble and walk back and forth, and his own writing seems to lack direction.  He just argues and counter argues, looking for a disappearing truth.  Some hot-button issues seem to have been omitted, such as the possibility of secession.

Vile's book shows how "respected scholars" may disagree on questions as fundamental as the Constitutional amending process itself.  So the opinions and arguments  of "amateurs" (like me) on constitutional law may be as valid as the prattle of experts.

But, say some of my friends, all this talk about "the Bill of Rights" and the "Constitution" drives away real people, and keeps the debate with the radicals and intellectuloids who may seem to have nothing better to do than attract attention.

Vikram Amar and Alan Brownstein provide an article, “President Bush’s Proposed Same-Sex Marriage Amendment: Part One in a Series on Wise and Unwise Constitutional Amendments” on Feb 4, 2004 at  http://writ.news.findlaw.com/commentary/20050204_brownstein.html

The authors write in this article:

“Given the reality that this dialogue is just getting under way, and that there has been so substantial a change in cultural attitudes in a short period of time, why should our society be contemplating a constitutional amendment to ban same-sex marriages now?

“It is hard to avoid the conclusion that the purpose of this amendment is to prevent this dialogue from continuing. The goal would seem to be to prevent ongoing discourse and cultural change that might eventually be reflected in political decision making -- in essence, to short-circuit democratic deliberation about this normative issue before further changes in political attitudes occur.”

They consider state constitutional amendments as much less potentially damaging to the democratic process that any federal amendment designed to derail the legitimacy of debate about a fundamental cultural change.