Tuesday, December 7, 2010

Is Randy Barnett's Repeal Amendment un-conservative?

Glenn Reynolds over at Instapundit has a round-up of links addressing Randy Barnett's Repeal Amendment, something that I wrote about recently on this blog. As Reynolds notes, one of the prime objections to Barnett's proposal has some from some of the left-side of the blogosphere who are proposing that there is something un-conservative about amending the Constitution.  While it there is no question that a conservative approach to amending the Constitution would stress a prudential restraint in changing our fundamental charter for light reasons, the simple fact is that the Founders themselves thought that the document should be open to amendment -- that's why they put the Amendment Clause in the Constitution to begin with. Article V of the Constitution reads as follows:
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.
And not only did the Founders think that the Constitution should be open to Amendment theoretically, they thought that it should be amended in actuality.  Let's take a took at statements from the two American Founders most commonly revered on the American Right currently, George Washington and Thomas Jefferson.

George Washington, writing to anti-federalist Patrick Henry after the Constitution had been proposed, argued that the Constitution was imperfect and that the Amendment Clause should be viewed as the imperfect document's saving grace, meriting its adoption:
I wish the Constitution which is offered, had been made more perfect, but I sincerely believe it is the best that could be obtained at this time.  And, as a constitutional door is opened for amendment hereafter, the adoption of it, under the present circumstances of the Union, is in my opinion desirable.
George Washington, Letter to Patrick Henry, September 24, 1787, quoted in The Essential Wisdom of the Founding Fathers, edited by Carol Kelly-Gangi (Fall River Press:  2009), pg. 33.

Washington's statement clearly asserts that the Constitution could be improved upon, and that the Amendment Clause was included to provide a mechanism for correcting its less than perfect elements.  And, critically, that the Amendment Clause is what made the imperfect Constitution worthy of adoption.  The nation would not be stuck with an imperfect charter, but could, over time, correct its errors.

Thomas Jefferson voiced a strong concern that the Constitution as originally drafted lacked fundamental protections against intrusive federal power.  As he wrote to his protege James Madison in 1787, Jefferson objected to the Constitution's lack of critical protections, most notably the following:
[O]mission of a bill of rights, providing clearly, and without the aid of sophism, for freedom of religion, freedom of the press, protection against standing armies, restriction of monopolies, the eternal and unremitting force of the habeas corpus laws, and trials by jury, in all matters of fact triable by the law of the land, and not by the laws of nations.  
Thomas Jefferson, Letter to James Madison, 1787, quoted in The Essential Wisdom of the Founding Fathers, edited by Carol Kelly-Gangi (Fall River Press:  2009), pg. 47.

Jefferson's remedy for these omissions was a Bill of Rights:
I have a right to nothing which another has a right to take away.  And Congress will have a right to take away trial by jury in all civil cases.  Let me add that a bill of rights is what the people are entitled to against every government one earth, general or particular, and what no just government should refuse or rest on inference.
Indeed, Jefferson's belief in the malleability of the Constitution via amendment was one of the lodestars of his constitutional philosophy.  While strongly opposed to open-ended judicial construction of the Constitution, Jefferson derided those who thought that the Constitution should not be amended.  As he wrote to Samuel Kercheval in 1816,
Some men look to Constitutions with sanctimonious reverence and deem them like the Ark of the Covenant -- to sacred to be touched.
Thomas Jefferson, Letter to James Samuel Kercheval, July 12, 1816, quoted in The Essential Wisdom of the Founding Fathers, edited by Carol Kelly-Gangi (Fall River Press:  2009), pg. 47.

I think that a good case can be made for skepticism regarding Barnett's Repeal Amendment, but the idea that conservatives should oppose it because of some mythical conservative belief in the sacred and hallowed nature of the Constitution is just silly.  The Constitution itself contains a mechanism for its Amendment, and the Founders most currently looked to by conservatives explicitly endorsed the idea that the Constitution not only could be amended, it should be amended.

[Cross-posted over at my blog Ordered Liberty.]


Paul Swendson said...

I'm glad that it could be amended. If nothing else, slavery was eradicated through the amendment process, and the Bill of Rights, which nearly all Americans view as an integral part of the document, were added as amendments.

Personally, I would like to see the process for electing presidents changed. Unfortunately, too many view it as a part of our "hallowed" Constitution.

Daniel said...

Jefferson, of course, was anything but conservative. That he has become a conservative touch-stone is an indication that the meaning of "conservative" is malleable. And the malleability of that label makes arguments about whether something is really 'conservative' exercises in tautology or in bluster.

Mark in Spokane said...


I would certainly argue that the underlying push of the Revolution and the Constitution toward basic human equality wasn't formally enshrined in the text until the passage of the 13th, 14th and 15th Amendments. So, like you, I think the fact that the Constitution is capable of amendment is a very good thing. And the natural rights concepts that undergird the 13th, 14th and 15th Amendments was and are a product of a fundamentally conservative view of the human person and the need for positive law to reflect natural law.


Conservatism isn't a single ideology or collection of ideas, so conservatives will vary over time and place on the principles that they hold dear. A conservative in China and a conservative in Argentina and a conservative in Nebraska are not likely to agree much! But modern conservatism in America does have a common ideological core, and that core is built, for good or ill, on a reverence for the Founders and a devotion to the Constitution. The point I was making is that efforts to deny the intellectual coherence of conservative efforts to amend the Constitution don't take seriously the Founders' vision about the Constitution. It is not un-conservative to try to amend the Constitution in a conservative direction, and the Founders themselves did not view attempts to amend the Constitution as problematic per se. Now, that doesn't mean that the Founders would have supported Barnett's proposal. But they wouldn't have been opposed to the idea that the Constitution should be amended if a problem was perceived to have arisen in its operation.

I agree with you, btw, that Jefferson is an odd hero for modern conservatives to flock to. Both Russell Kirk and Connor Cruise O'Brien regarded Jefferson as a dangerous radical. My tastes in Founders tend to run on the Federalist side, although I have a great respect for the Tertium Quid/National Republican movement of John Randolph of Roanoake and JQ Adams.


Mikewind Dale said...

Nice post. Thanks.

Two additional points:

(1) This amendment is meant to undo the damage done by the 17th Amendment. Additionally, it is meant to undo the damage caused by misinterpretation the "necessary and proper," "interstate commerce," and "general welfare" clauses. (Cf. Madison's Virginia Resolution: "[A] spirit has in sundry instances, been manifested by the federal government, to enlarge its powers by forced constructions of the constitutional charter which defines them; and that implications have appeared of a design to expound certain general phrases (which having been copied from the very limited grant of power, in the former articles of confederation were the less liable to be misconstrued) so as to destroy the meaning and effect, of the particular enumeration which necessarily explains and limits the general phrases.") Even if it were un-conservative to amend the Constitution, surely, even then, it would be perfectly conservative to amend the Constitution to undo previous damage done to it and restore its original meaning!

(2) As for the specific amendment itself, Madison's and Jefferson's Virginia and Kentucky Resolutions (respectively) incline me to believe that those two figures in particular would have completely supported this amendment. See also Federalist no. 46: "Should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps refusal to cooperate with officers of the Union, the frowns of the executive magistracy of the State; the embarrassment created by legislative devices, which would often be added on such occasions, would oppose, in any State, very serious impediments; and were the sentiments of several adjoining States happen to be in Union, would present obstructions which the federal government would hardly be willing to encounter."

jimmiraybob said...

...incline me to believe that those two figures in particular would have completely supported this amendment.

But at what point in their careers would they possibly support the concept? The revolutionary phase? The post-constitutional legislative phase? During their presidencies?

As a purely ideological point of view it's one thing to say that the states should take a cafeteria approach to the commonwealth of the nation. As a more practical matter it's quite the other thing.

What would be the limiting factor on nullification, you could only nullify new law? A state can nullify only amendments, let's say the 17th, to the constitution? Could a state nullify specific clauses? Would the first ten amendments be off limits?

I doubt that there's serious concern over whether conservatives could/should support amendment given due process, but concern should be placed on what amendments are proposed.

Some people during and after the founding made appeals to stand united or fall divided. In this case I would propose the WWGWD rule - what would George Washington do?

Joel S. Hirschhorn said...

What people of any political persuasion should fear is not using the Article V convention option the Founders gave us, but the status quo of the structure of our political and government system. Learn more facts about the convention option at foavc.org.

Daniel said...

I think I agree with your overall assessment of the argument. Reverence for our Framers does not work well as an argument for status. They were experimenting and encouraged further experimentation.