History

Are Conservatives Allowed to Amend the Constitution?

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Slate's Dahlia Lithwick and historian Jeff Shesol published an article on Friday criticizing the Repeal Amendment—which would allow the states to repeal federal laws or regulations if two-thirds of the states so voted—as evidence of a "conservative mission to destroy the Constitution in order to save it." The piece rests largely on the authors' claim that "Traditionally (and what is conservatism if not respect for tradition?) conservatives have railed against 'Constitutional tinkering,' while progressives have proposed all manner of amendments—some successful (women's suffrage), others not (equal rights for women)." In other words, any conservative that supports the amendment is a hypocrite.

Here's the trouble: This simplistic narrative bears little resemblance to the actual historical record. As George Mason University law professor David Bernstein points out, conservatives and libertarians played central roles in drafting and ratifying the very constitutional amendments that Lithwick and Shesol cite as "progressive":

For example, Senator George Sutherland of Utah, later to gain fame as a "conservative" Supreme Court Justice, introduced the women's suffrage amendment in the Senate…. With regard to the Equal Rights Amendment, it was drafted by Alice Paul and the National Woman's Party with advice from, you guessed it, George Sutherland. While some feminists who were also progressives supported the ERA, individuals who primarily considered themselves progressives, such as reformer Florence Kelley, opposed the ERA because it made no exception for "protective" labor legislation that only applied to women. Prominent Progressives like Felix Frankfurter condemned "the Alice Paul theory of constitutional law, which is to no little extent a reflex of the thoughtless, unconsidered assumption that in industry it makes no difference whether you are a man or woman."

Lithwick and Shesol also assert that conservatives "in the 1920s and 1930s" complained about the 14th and 15th Amendments to the Constitution. But of course it was conservative and libertarian judges and lawyers who turned to the 14th Amendment at that time to protect property rights and liberty of contract from government abuse while Progressive hero Louis Brandeis favored repealing the 14th Amendment outright. And let's not forget progressive President Theodore Roosevelt, who favored repealing the 15th Amendment since the black race was "two hundred thousand years behind" the white and therefore not yet ready to vote.

Furthermore, the major civil rights victory of that era, the Supreme Court's 1917 decision in Buchanan v. Warley, relied on the 14th Amendment's protection of property rights to strike down a residential segregation law. That case was argued and won by libertarian NAACP co-founder Moorfield Storey. As Bernstein observes, the Buchanan decision "met with general condemnation in Progressive circles."

The Repeal Amendment may or may not succeed in limiting government overreach, but there's nothing wrong with thinking it's worth a shot.