Explicit and authentic acts: amending the U.S. Constitution, 1776-2015

669 Pages·2016·86.775 MB·English

by  Kyvig, David E

© 1996, 2016 by the University Press of Kansas
All rights reserved
Published by the University Press of Kansas (Lawrence, Kansas 66045), which was
organized by the Kansas Board of Regents and is operated and funded by Emporia
State University, Fort Hays State University, Kansas State University, Pittsburg State
University, the University of Kansas, and Wichita State University
Library of Congress Cataloging-in-Publication Data
Names: Kyvig, David E., author.
Title: Explicit and authentic acts : amending the U.S. constitution, 1776–2015
with a new afterword / David E. Kyvig.
Description: Lawrence, Kansas : University Press of Kansas, 2016. |
Includes bibliographical references and index.
Identifiers: LCCN 2016002974 |
isbn 978-0-7006-2229-0 (paperback)
isbn 978-0-7006-2230-6 (ebook)
Subjects: LCSH: Constitutional amendments—United States—History. | BISAC:
POLITICAL SCIENCE / Constitutions. | LAW / Constitutional. | LAW / Legal History.
Classification: LCC kf4555.k98 2016 | DDC 342.7303—dc23 LC record available at
http://lccn.loc.gov/2016002974.
British Library Cataloguing-in-Publication Data is available.
Printed in the United States of America
10 9 8 7 6 5 4 3 2 1
The paper used in this publication is recycled and contains 30 percent postconsumer
waste. It is acid free and meets the minimum requirements of the American National
Standard for Permanence of Paper for Printed Library Materials z39.48-1992.

Contents
Preface 2016 ix
Acknowledgments 2016 xxv
Preface 1996 xxvii
Acknowledgments 1996 xxxvii
1. “Here Shall Be Thy Bounds”
The Rise of Constitutionalism 1
2. “To Rectify the Errors That Will Creep In”
The Emergence of the Amending Corollary 19
3. “A Peaceable Process of Cure”
Devising the American Amending System 42
4. “A Remedy in the System Itself”
Amending and the Adoption of the Constitution 66
5. “The Most Satisfactory Provisions for All Essential Rights”
Immediate Amendment as the Constitution’s Price and Proof 87
6. “Too Ticklish to Be Unnecessarily Multiplied”
Amendments and the Judicial Review Alternative 110
7. “In Pursuit of an Impracticable Theory”
States’ Rights and Constitutional Amendment 134
8. “Consummated Amid Fiery Passions”
The Second American Constitutional Revolution 154
9. “No Force Less Than the Force of Revolution”
Resurrecting the Amending Remedy 188
10. “Just as Far as Public Sentiment Would Justify”
An Era of Constitutional Activity and Faith 216
vii
viii Explicit and Authentic Acts
11. “Like the Ratchet on a Cog Wheel”
Second Thoughts About Amendment 240
12. “Where the People Themselves Express Their Will”
Altering Established Constitutional Provisions and Practices 268
13. “The Danger of Tinkering”
Forgoing Amendment in the Third American Constitutional
Revolution 289
14. “The Sharp Anger of a Moment”
Attempted Counterrevolution by Amendment 315
15. “Not Perfect, but Better Than No Solution”
Amendments to Solve Immediate Problems 349
16. “To Set Out on a Vast Uncharted Sea”
Failed Quests to Alter Original Agreements 370
17. “They Thought That Just Being Right Would Be Enough”
Amendments as Tests of National Consensus 394
18. “To Manipulate the Symbol of National Purpose”
Amendment Politics in a Conservative Era 426
19. “The Offspring of Our Own Choice”
Amendments in Constitutional Thought and Practice 461
Afterword 489
Notes 505
Bibliography 569
Index 609
PREFACE 2016
The 225th anniversary of the first success of the U.S. Constitution’s
amending process, the ratification of the ten amendments known as the Bill
of Rights, occurs in 2016. After the passage of so much time, it seems safe to
say that the amending mechanism, the most innovative feature of the longest
lasting written constitution in history, has played an important role in the
development of American government. Often overlooked as the device that
allowed the United States to modify significantly its fundamental instrument
of governance as social and political conditions changed, yet invest those
alterations with as much weight as other features of the nation’s highest
law, the amending instrument and the results it produced to keep the Con-
stitution functioning deserve more attention than they have received. Thus,
I am grateful for the opportunity to update this general history of American
constitutional amendment twenty years after its original publication.
As I noted two decades ago, if revolution involves the sudden and funda-
mental transformation of basic conditions, then surely the most soft-spoken
revolutions are those that occur without violence, disorder, or trauma. In
Western political culture, such revolutions were virtually unheard of prior
to the late eighteenth century. Before that time, political revolutions in-
volved the forceful overthrow of regimes, the toppling of monarchies, and
the often bloody removal of holders of power. During the English Civil War,
however, the thought began to stir that such upheavals might be avoided if
the sovereign power of the state could define and limit government through
written constitutions. By the end of the eighteenth century, particularly in
North America, growing optimism regarding the human capacity for reason
nourished the belief that fundamental changes could be wrought in other-
wise enduring governments through a preordained and agreed-upon process
that embodied democratic values. The formal revision of constitutions by
previously established methods could bring about revolutionary changes in
governments while at the same time legitimizing their continued existence.
In other words, constitutional amendment offered a means of successfully
balancing competing desires for stability and change, tradition and inno-
ix