公法评论

Explicit and Authentic Acts: Amending the U.S. Constitution, 1776-1995. / (book reviews)
Author/s: Donna J. Spindel
Issue: Spring, 1998

Explicit and Authentic Acts: Amending the U.S. Constitution, 1776-1995. By David E. Kyvig. (Lawrence: University Press of Kansas, 1996. Pp. xx, 604. $55.00.)

This impressive study will surely take its place among the major works in constitutional history. To date, a great deal has been written about the First and Fourteenth Amendments, but much less attention has been focused directly upon Article V and the amending process itself. At first glance, it may appear that there is not much of a history here. But David Kyvig argues skillfully and convincingly that over time the process has been intrinsic to the durability of constitutional government. With very few exceptions, constitutional amendments have addressed broad, fundamental issues of government. It was the intention of the framers, he says, that a means be established by which government could change only as a result of a broad consensus and without being torn by revolution. Article V, in fact, lays out a mechanism by which constitutional reform can take place within this framework. Kyvig emphasizes that a proposed amendment must be approved by what he calls a "supermajority," two-thirds of the Congress and three-fourths of the states. As he points out, ERA opponents in the 1970s declared total victory when the amendment died, but failed to note that a majority of the states, (although not the necessary three-fourths), had supported the amendment.

Much of this study is devoted to both failed and successful efforts to amend the Constitution. Underlying each case study, however, is the ever present theme that Article V is a key component of constitutional government that might itself have failed ratification with out the inclusion of an amending process. He argues that the Bill of Rights, for example, was as important for its content as it was for serving as evidence that Article V worked. Kyvig argues that the framers never intended for the Constitution to change often. He takes a look at the evolution of the principle of judicial review and suggests that constitutional interpretation worked hand in hand with constitutional amendment. Judicial review diminished the need to resort to constitutional change.

Kyvig's discussion of the Reconstruction amendments is instructive in that he points out that written amendments do not necessarily accomplish their intended goals. In this case, (and this argument is not new), Supreme Court justices interpreted the amendments very narrowly, as conservative and racist supporters would have wished. The author, in fact, politicizes much of his own interpretation of amendment efforts in this century But his perspective is candidly presented. His own beliefs also help to emphasize a key point of this study--proposed amendments do not emerge in a vacuum. Kyvig goes so far as to suggest that when the ERA and D.C. representation amendments failed in the 1970s, members of Congress understood that they could propose new amendments, which realistically had no chance of passage, as an effective means of conveying their views to the public.
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In much of the book, the author analyzes twentieth-century amendments, beginning with the Sixteenth (income tax), and ending with the Twenty-seventh (congressional pay raise), which Kyvig calls uniquely "trivial." In nearly every case, the process was difficult. This, he says, would please the founders. The "two-tiered" nature of the amending process has made it possible for necessary and substantive change to take place in an orderly way. This argument in itself is nothing new. What Kyvig brings to the argument is historical context and compelling evidence presented within a very readable framework.