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The way to alter the Constitution is by amendment, not interpretation

To the Constitution’s 27 amendments, Senate Democrats would like to add a 28th.

The Senate Judiciary Committee last week approved a resolution to amend the Constitution by empowering Congress to regulate the amount of money that could be raised or spent in federal election campaigns, and granting state governments the same authority in state elections. The amendment — introduced by New Mexico Senator Tom Udall and co-sponsored by most of his Democratic colleagues, including Elizabeth Warren and Ed Markey of Massachusetts — is intended to roll back not only the Supreme Court’s 2010 ruling in Citizens United v. FEC, but also its landmark decision in Buckley v. Valeo, which affirmed nearly 40 years ago that political spending was expression protected by the First Amendment from arbitrary government limits.


The proposed amendment will almost certainly fail on the Senate floor, where it doesn’t have the two-thirds support needed for passage. In the Republican-controlled House, where Minority Leader Nancy Pelosi yesterday introduced a companion resolution, opposition is even steeper.

For anyone who believes in a vigorous marketplace of ideas and thinks more political speech is better than less, the likely defeat of Udall’s amendment is reassuring. Count me among those who would hate to see liberties guaranteed by the First Amendment stripped of their protection through new constitutional language. Yet even those of us who reject the notion that the Bill of Rights needs fixing should take a moment to applaud Udall and his allies for pursuing their goal the right way: by undertaking the challenge of trying to pass an amendment.

Udall’s amendment isn’t the only suggested constitutional fix being bruited about. Senator Jon Tester of Montana and Representative Jim McGovern of Massachusetts are pushing a “People’s Rights Amendment” that would limit constitutional rights to “natural persons,” thereby erasing the corporate personhood rights that were key to the holding in Citizens United and, more recently, Burwell v. Hobby Lobby. Markey backs this amendment too; on the day of the Hobby Lobby ruling he announced his support for Tester’s Senate version.


If anything, the anti-corporate-personhood crusade is more ill-advised than the effort to squelch independent campaign spending. Even liberal legal scholars have warned that if the People’s Rights Amendment were ever adopted, the collateral damage would be severe. But give the sponsors credit for openly advocating a change in the Constitution, and not just trying to get the Framers’ language reinterpreted to mean something it never meant before.

To say that the Constitution isn’t easy to amend is an understatement. More than 10,000 amendments have been proposed by members of Congress over the last two-and-a-quarter centuries. Just 27 of them were eventually ratified. But to say that the Constitution is impossible to amend is obviously an overstatement. It can be done, but only with time, persistence, and public support that is both wide and deep. The process was designed to be difficult. For all the talk about a “living Constitution,” it is the nation’s legal bedrock; it isn’t supposed to change except under extraordinary circumstances, and only after following the deliberately convoluted, hurdle-filled course set out in Article V.

Judicial review gives us a way to adapt constitutional writ to modern applications. “For the most part, we the people have generally regarded that as legitimate,” says Samford University law professor Brannon Denning, “even as we disagree about specific decisions.” But a fundamental altering of the Constitution’s meaning — a tectonic shift in the bedrock — should come not from judges but from the people, through the affirmative democratic act of amending the Framers’ text.


For most of our history, this was taken for granted. Americans committed to achieving female suffrage didn’t insist that women’s right to vote was already in the Constitution, waiting to be discovered by a judge in the penumbra of the Bill of Rights. They fought for a 19th Amendment that would make that right unambiguous. Likewise, Americans who wanted an end to poll taxes secured it through the 24th Amendment.

Americans may disagree vehemently on just where the Constitution needs fixing. But hats off to those who propose to “fix” it the way the Framers prescribed: by amendment, not lawsuit. Much harder that way. Much more legitimate.

Jeff Jacoby can be reached at jacoby@globe.com. Follow him on Twitter @jeff_jacoby.