The Appropriateness of Constitutional Amendments

In Minnesota’s ongoing debate over the constitutional questions before voters this fall, opponents have occasionally raised a question that has nothing to do with the wisdom of the policies themselves.  “Is it appropriate to enshrine this policy in the Minnesota state constitution?” they will ask, or, if they are in a somewhat more confrontational mood, “Aren’t you just using the referendum to bypass the legislative process” — by which they mean the governor’s veto pen — “and enact your party’s initiatives by any means necessary?”

Usually, this question is asked in the traditional civic spirit that pervades American politics, by which I mean bald-faced hypocrisy.  In 2012, with a Democratic governor and Republicans in control of the entire legislature, it is Democrats angrily demanding that Republicans cease this coup d’etat against the typical legislative process.  In 2008, when the power structure was reversed, so was the question: Republicans accused Democrats of abusing the amendment process to pass their agenda into law.  (The 2008 “Legacy Amendment” proposal, which sought a new sales tax to fund Art and Nature, passed handily.)  Every single self-styled constitutional conservator I have met in 2012 voted for the Legacy Amendment in 2008.  Now they raise the very argument they ignored in 2008 to attack the amendments they don’t like.  The reverse is true for those who questioned the Legacy Amendment’s legitimacy four years ago.  It is difficult to take so many unserious people seriously.

But the question itself is a good one, and a sincere and inquisitive reader recently asked it of me, which always demands a thorough reply.

We may answer the question by first asking ourselves: for what purpose do constitutions exist?  As with any good law, the constitution’s purpose is most clearly found within its own text and structure.  And what is it that we find in any constitution?  I contend that every single clause in every constitution ever written is doing one of two things:

  1. A clause is either establishing a Legislative authority, whose power is to define the law, or;
  2. A clause is limiting the Legislative authority, preventing it from defining certain areas of law.

This is not the conventional view of constitutions, but I think it has legs.  Recall that the path to the U.S. Constitution began not in 1776, but in 1215.  In the 13th Century, England was ruled by a single, sovereign legislator: the King, who had absolute, arbitrary power to define the law of the land.  Some of King John’s barons rebelled, but, rather than deposing John, they signed an agreement, which at once recognized the King’s legitimate legislative authority, but compelled him to accept certain limits on that power.  (This did not actually go very well, but the Magna Carta eventually got around to becoming the law of the land, a compact even the king could not void.)

Centuries later, the sole legislator, the King, began to divest some of his power upon a new body, the representative legislature called Parliament.  Over time, more and more of that power was divested, until, finally, Parliament became the supreme legislator.  From the Glorious Revolution to the U.K.’s entry into the European Union, the supreme principle of the United Kingdom’s “unwritten constitution” became Parliament’s absolute legislative supremacy.   In principle, Parliament could pass any law it chose, and that law became the law of the land.  Parliament even had the extraordinary powers to define its own terms in office, to change the royal succession, and to define its own structure and constituency.  In other words, the British constitution establishes a legislative power, but does not impose any binding limitations on it.

Parliament’s decision to leave the American colonists unrepresented in its constituency, with the assent of the King, led directly to the Revolutionary War.  Eventually, America won that war.

Hoping to guarantee that the People’s government remained, in the future, truly the People’s, the Founding Fathers came up with the greatest innovation in the history of representative government: they limited the legislative power.  The legislature was created, sure enough, but it was not created and invested with absolute power by the common consent of the People, as might have been expected.  Instead, the People consented to an authority higher than the legislature, a written constitution, and it was only under the terms of that Constitution that the legislature (Congress) was finally created and vested with authority.

The first half of the first sentence of Article I, Section I of the U.S. Constitution establishes that Congress has legislative power.  Nearly everything that follows, however, sets a limit on that power.  Indeed, the second half of that very same sentence defines the structure of Congress, taking the power of self-definition away from Congressmen.  Qualifications and basic rules for election are set, taking that power away from Congress as well.  Then the Constitution gets serious.  Congress’s legislative powers are enumerated and confined within those limits, a supreme encumbrance to the infinite reach Members of Parliament were accustomed to.  Entire branches of government, the executive and judicial departments, which Parliament would have been able to reconfigure at will, were not only established outside of Congress’s reach under the Constitution, but they were deliberately set against Congress (and each other) in order to preserve the Constitution by a system of checks and balances.  Rules of Amendment are then established.  Duties are imposed on each branch of the government.  And, finally, the celebrated Bill of Rights lists huge classes of laws which the legislature may not make.  Every line of law defined by the Constitution is a line of law taken out of the hands of the legislative power.  Rarely does the Constitution pause to reserve to Congress any legislative discretion over any of its many requirements.  It does happen in the Full Faith and Credit Clause, the Rules Clause, and a few other places, but the vast majority of the U.S. Constitution acts to constrain Congress.

A similar pattern is followed in the Minnesota Constitution.  From its first proclamation of the purpose of government to its final passages on the public highway system, our state’s highest law is at once an establishment of legislative power and a severe constraint upon its discretion. From the perspective of We, the People, this makes sense: we want to rule our legislatures, not be ruled by them.

Notably, the laws we have set in constitutional stone are not, by and large, the principles that matter most to us.  This may sound odd, given the soaring rhetoric of our constitutions, but it is nevertheless true.  Let me explain by an example: Most people would agree that rape is very nearly the most serious crime a person can commit under our law (perhaps the most serious). Nevertheless, to my knowledge, there is not a single state constitution which guarantees, whether specifically or by inference, that rape will always be illegal, nor that rapists will always be punished.  Rape laws are purely a function of the legislature.  If the legislature decided to decriminalize rape, no court would have the power to continue punishing rapists, and no executive the power to continue arresting them.  We have left this very important principle — “Rape is bad and should be stopped” — in the hands of our elected officials.

Is this a bad thing?  Does this mean we should pass anti-rape amendments?  No.  There are hundreds and hundreds of laws on very important subjects — laws essential to a good and safe society — which are left entirely to the discretion of our legislature, from cannibalism to the definitions of taxable goods.  A constitution which attempted to define all of them would be thousands of pages long, impossible to maintain or enforce, and far too inflexible for a functioning government.  We are able to leave the questions of rape and cannibalism to our legislators, not because they are unimportant questions, but because we may assume that our legislators will always be on the right side of those questions.

And there is our answer.  The most important question you must ask yourself when considering the appropriateness of a constitutional amendment is: “Do I trust future legislatures (or governors, or judges) to be on the right side of this question?”  If not, then it may be appropriate for the People — Minnesota’s ultimate sovereign — to take away the legislature’s power to do the wrong thing.

I say “may be”, though, because there are other concerns at stake.  One should not attempt to pour all, or even most, ordinary legislation into the constitution.  There are two reasons for this: first, because expanding the constitution willy-nilly tends to lead to the paralysis of the constitution and of the general government, as I suggested above.  Second, because too-regularly bypassing your legislature invites all the dangers of direct democracy into your polity.  Every state has a representative republic (which is actually guaranteed by the federal Constitution, true story) largely because the People themselves are not the ideal judges of individual policies.  For all their tremendous wisdom and good intentions, voters — by and large — will never be experts on the issues that face their state in a given year.  They are not legislators.  They have real lives.  They are experts in other things.  When asked to become their own legislature, the People, under the influence of lobbyists and half-considered principles, tend to make a royal mess of things.  We do not need to delve into ancient history to prove the point.  California will suffice.

Therefore, I conclude that it is wise for a voter to be cautious about changing the constitution.  Even if you do not trust future legislatures to agree with you, you must ask yourself: is the benefit of placing this in the constitution greater than the cost?  Will passing this amendment encourage many amendments of similar scope, which could, taken together, eventually compromise the strength of our government?  Above all: am I really quite sure that I know better than current and future legislators about this issue?

You’ll notice that I am leaving you with questions, rather than clear formulae.  This is disappointing, but unavoidable.  Whether a particular subject is fit subject for a constitutional amendment is a question that hinges on a series of prudent judgments, about which reasonable people of well-formed conscience can (and do!) disagree.

However, many of today’s conversations about amendments are founded in misunderstandings of what a constitution is intended to do.  I hope that I have resolved some of that confusion.  I have attempted to present certain common principles which, I hope, will form the basis for future conversations about particular amendment questions before the People of Minnesota.

FULL DISCLOSURE: In a fit of romance for which I have not yet repented, I cast my vote for the Legacy Amendment in 2008, and I intend to support both the Voter ID and Marriage Definition amendments at the polls next month.

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