This essay originally appeared in Christopher B. Gray (ed.), Philosophy of Law: An Encyclopedia, Garland Pub. Co, 1999, I.31-32. Copyright © 1999, Peter Suber.
Amendment Peter Suber, Philosophy Department, Earlham College
If the fundamental law, or constitution, of a nation cannot be changed by legal means, then it cannot adapt to changing circumstances; as the disparity with circumstances widens, the risk of revolution increases. But if it can be changed too easily, then the fundamental principles and institutions it establishes are at risk of being swept away by a majority momentarily enraptured with a new idea. An amendment clause permits fundamental change, courting the latter risk, but it makes that change difficult, courting the former. It aspires to capture the inconsistent virtues of stability and flexibility, protecting what the enacting generation thinks wise, but permitting future generations to think otherwise.
The mere existence of an amending clause in a constitution shows a belief that the fundamental law is a human contrivance subject to human refinement. Although it may be accompanied by affirmations of natural law, it is a sign of emergent positivism. We should not be surprised, then, to learn that the world's first explicit amending clause, in the Pennsylvania constitution of 1776, is a product of the Enlightenment.
Ordinary legislation can be changed by the body which made it. While this is often the case with constitutions, the amending body is rarely in continuing session. A special procedure, or body, or both, is needed to amend a constitution. Ordinary legislation embodies the policy decisions on which the majority ought to have its way. The constitution establishes more fundamental principles and institutions, including the procedures of ordinary legislation and limits on majoritarian power. If the power of ordinary legislation is exercised foolishly, no structural damage is done and its products may (in principle) be repealed or corrected the next day. But if the principles and institutions of the constitution are foolishly revised, then the channel of correction may itself have been removed or obstructed, and the only remedy may be a period in political purgatory while the nation establishes new, acceptable procedures.
When ordinary legislation conflicts with a constitutional rule, the latter takes priority. This legal priority is invariably yoked to a political difference: changing constitutional rules is procedurally more difficult than changing ordinary legislation. The legal and political differences occur together so that the more fundamental a rule or structure is, the more it is protected from hasty change. But the risk, and opportunity, inherent in an amending procedure is that these basic rules and structures may still be swept away if a larger sort of consensus is obtained.
The political difficulty of constitutional amendment, when self-imposed by a people, is a form of self-paternalism. It is our method of protecting ourselves from our anticipated weak moments. When an amending clause is imposed by another people, for example, the 1946 Japanese amending clause by the Supreme Command for the Allied Powers, it can be an instrument of paternalism and political domination. Until 1982, the Canadian constitution could only be amended by the English Parliament; when England finally transferred this power to Canada, Canadians spoke of the "repatriation" of their constitution, and of becoming for the first time sovereign in their own land.
Scholars and officials often view the constitutional amending power as an incident of sovereignty, and the amending body as the sovereign. This is clearly because the amending power is supreme within its legal system, even if not omnipotent. It is omnipotent as well if can reach every rule, structure, or principle of the legal system. Scholars disagree on whether any amending power is legally omnipotent (and on what legal omnipotence is). There are always procedural limitations on the amending power, but some have alleged that substantive limitations may be implied and may even be irrevocable.
In the U.S., one substantive limitation is explicit: no amendment may deprive a state of its suffrage in the Senate without its consent. But it seems clear that with the consent of every state this provision could be repealed. Similarly, if the amending clause can amend itself (see the article on self-reference in law), then all express and implied substantive limitations on the amending power might be overcome with the exception of the limitation which prevents the amending power from imposing irrevocable limitations on itself.
Orfield, Lester Bernhardt. Amending the Federal Constitution. Ann Arbor: University of Michigan Press, 1942.
Suber, Peter. The Paradox of Self-Amendment: A Study of Logic, Law, Omnipotence, and Change. New York: Peter Lang Publishing, 1990.
Vile, John R. Contemporary Questions Surrounding the Constitutional Amending Process. Westport, Conn.: Praeger, 1993.
Vose, Clement. Constitutional Change: Amendment Politics and Supreme Court Litigation Since 1900. Lexington, Mass.: Lexington Books, 1972.
Earlham College, Richmond, Indiana, 47374,
firstname.lastname@example.org. Copyright © 1999, Peter Suber.