The Article V Blunder

I must argue that my colleague, as well as the increasingly shrill Andrew Sullivan, have reached the right conclusion about the proposed constitutional amendments in the GOP platform for the wrong reasons. It seems to me that a true Burkean–one who advocates caution, skepticism and moderation in social reform but does not believe the social order should be ossified–would be forced to conclude that it is far too difficult to amend the United States Constitution, and that there have been too few (formal) amendments. Article V was, apart from the compromises with slavery, the biggest blunder the framers made. Not only does it make formal amendments of any importance almost impossible, but it has ancillary effects (such as placing far too much relative weight on judicial doctrine for constitutional development) that are also bad for the polity. (Those more formalist than I could also add that the necessity of amending the constitution through informal conventions and creative judicial interpretation undermines the rule of law, although I personally don’t agree with this argument.) It hardly requires a radical to believe that it is ridiculous that a more than 200-year old document written by fallible men for an agrarian society whose franchise was strictly limited on the basis of property, race and gender has been amended fewer than twenty times in 200 years. And, of course, even this number overstates the extent of the change; not only have many of these amendments been relatively trivial, but by far the most important (the 14th) was ratified through coercion–it would not have been ratified were the procedures in Article V actually being adhered to.

So focusing on the quantity of amendments proposed by the Republicans is wrong on the merits, and not even very compelling as an internal critique. Any thoughtful, politically aware person could quickly come up with a dozen worthwhile amendments. The real problem with the amendments proposed by the GOP is that they are batshit nutty. A Human Life Amendment would go beyond banning abortion–it would, for example require states (unless they wanted to get rid of their murder laws entirely) to prosecute women who procure and doctors who perform abortions for homicides. Writing homophobic bigotry into the Constitution is an appalling idea; writing a flag-burning ban into the Constitution a silly idea. There’s nothing wrong with the GOP proposing some constitutional amendments; it’s the content that’s the that’s radical.