Leiden Law Blog

The problem Madison did not confront

Posted on by Reijer Passchier in Public Law
The problem Madison did not confront

When the American founding fathers drafted the first written constitution in the world, one of the most important questions they were facing was: how difficult should it be to change this fundamental document? This question is still highly relevant.

Thomas Jefferson famously argued that it should not be too difficult to change a constitution. He believed that ‘the earth belongs to the living and not to the dead’. His democratic principle entails that ‘the living’ may govern themselves as they please, but they may not bind future generations. Therefore, he found that every constitution should ‘naturally expire at the end of thirty-four years’. After that period, the people should have the possibility to assemble themselves again for ‘altering the constitution or correcting the breaches of it’.   

James Madison did not endorse Jefferson’s pretty radical democratic principles. He agreed that a constitutional law-making track should be kept open, but only for ‘certain great and extraordinary occasions’. Madison feared that ‘every appeal to the people would carry an implication of some defect in the government’. And that too frequent appeals would undermine the stability of the government depriving it of ‘that veneration which time bestows on everything’. A flexible constitution, Madison expected, would ‘disturb public tranquility’ and would ‘not answer the purpose of maintaining the constitutional equilibrium of the government’.

It was Madison who got his way. The Constitution of the United States has proved to be one of the most rigid constitutions in the world. The document has been deeply entrenched, both formally and culturally. As a consequence, the US Constitution has an extraordinary low amendment rate. In its 225 years of existence, roughly 10,000 amendments have been proposed, but only 27 of these proposals have been adopted. If it is taken into account that the first ten amendments - known as the ‘Bill of Rights’ – were ratified three years after the original document was adopted, the amendment rate is even lower. And in case one agrees that not all of the 17 remaining amendments are truly fundamental and that several of the textual additions in fact added nothing to the body of rules that regulate the American government, then the substantive constitutional amendment rate may reasonably be considered lower still.

On the face of it, this might sound like a victory for Madison. The stable American constitutional document, however, hides a very lively extra-constitutional reality. Yale Law Professor Bruce Ackerman explains that ‘long and complex transformations in American political identity’ have turned the American written constitution ‘into a radically incomplete statement’ of the United States’ higher law. His latest book (2014) convincingly shows that the fundamental changes that are associated with the Civil Rights Revolution were brought about without formal constitutional amendment. In previous volumes (1993 and 1998) he argued the same with regard to the 19th century Reconstruction and the 20th century New Deal. Sanford Levinson, Professor at the University of Texas School of Law, holds that there is an inverse relationship between the rigidity of the American constitutional document and the amount of extra-constitutional developments that have taken place. He sees the greatly expanded powers of presidents unilaterally to take the United States to war and the rise of the administrative state (both developments that cannot be traced back to the list of amendments to the US Constitution) as evidence that ‘the perceived necessity of change will triumph one way or another’. Yet, the question is: to what extent are these extra-constitutional transformations legitimate?

It is the problem not confronted by Madison (and his followers): what occurs when constitutional change is too difficult, and fundamental transformations take place outside of the special constitutional amendment procedure? Extra-constitutional developments may be considered necessary, but at the same time it is conceivable that a rigid constitutional design brings about exactly what it aims to prevent: instead of securing stability, stringent amendment requirements might as well disturb public tranquility and undermine the equilibrium of government.

And Madison’s blind spot is not only relevant for students of American constitutional law. Many written constitutions (as well as the European Treaties!) seem to have an overly rigid design rendering it virtually impossible to use the formal amendment procedure as a method to engineer fundamental change. Alternative means of revision often do not seem to be able to guarantee the extraordinary amount of deliberation and support that fundamental transformations arguably need. Consider, at the close of this blog, the case of the Netherlands. The Dutch constitution has not been amended significantly since 1917. The past century, however, was obviously not one of constitutional stagnation. The Netherlands acceded to several powerful international organizations and also the voting system transformed dramatically, to mention but two examples. Major fundamental decisions have been left to the cabinet acting alone, to ordinary majorities, to European Union institutions or simply to chance. My proposition is that the causes of contemporary issues, such as anti-EU sentiments, the rise of extreme right and left wing parties and the disaffection with the political system in general, may be better understood by analyzing the extra-constitutional evolution of our living constitution. The elaboration of this proposition, however, has to remain in store for a future blog.

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