>>> "Michael Hoover" <hoov at freenet.tlh.fl.us> 11/04/99 04:18PM >>>
> Although I can agree with Michael that the cumbersomeness and difficulty of
> the Amendment process are undemocratic, the fact that it CAN be amended ,
> even by a republican process, is one of the most democratic dimensions to
> the U.S. Constitution. Herbert Aptheker, in _The Early Years of the
> Republic_ says the Amendment provision has been termed the "revolution"
> provision.
> Also, some of the Amendments have been some of the most progressive
> provisions of the Constitution. The 13th Amendment abolished slavery.
> Hard to get more revolutionary and democratic than that.
> Most importantly, the Amendment provision offers a method of peaceful
> revolution. Every provision of the Constitution is subject to change.
> I'd have to say that the basic concept of amendability is the most radical
> aspect of the U.S, Constitution.
> CB
With all due respect to Herbert Aptheker (whose book cited above is wonderful, as are his _The Colonial Era_ & _The American Revolution_) and to you Charles, I think you both overstate the case. To say the framers recognized that need for change may arise is one thing (and no small thing given historical context) but there was no consensus about that matter among framers.
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Charles: I didn't mean this as a compliment to the framers. I sort of think of it like a rational kernel that has to be extracted from their overall perspective which was idealist and bourgeois , of course. It is sort of like the Declaration of Independence, which had flashes of incite , but did not mean that Jefferson was a-ok for 1999. It is like popular sovereignty, "We, the People" , and all the power in the Constitution deriving from the People as a whole. Of course, they didn't really mean it, but as stated, there is no barrier to giving it full radical meaning today.
More important than evaluating the framers, the provision has pretty much full revolutionary potential today, theoretically. It is not a stretch of interpretation to say that as long as we don't go with original intent.
I say all of this with the caveat that the law doesn't and won't make the revolution. That will have to be a movement. But it is an advantage to that movement that the theoretical law can make that revolutionary movement legal and above ground more than all past revolutionary movements. The revolutionary movement can rap itself in the Constitution as a tactic, recognizing that law is politics, and the changes will have to be won poltically, not logically and theoretically. At a certain point the ruling class will have to be the open outlaws in the struggle. So, to the extent that law is shaper of mass opinions and hegemony , the movement can gain some advantage by the Amendment provision.
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If memory serves, one of reasons (in addition to absence of bill of rights) George Mason refused to sign document was that he supported 'easy' amending process to counter what he believed would be instances of congressional abuse of power. In other words, he didn't perceive amending process in terms of expected changes to be made over time. In characteristic fashion, Madison's view is a 'balancing act' in that he thought amendment process convention adopted would 'guard equally against that extreme facility, which would render the Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults.' Federalist #43). History of amending process raises questions about Madison's moderated claims.
1-10 (Bill of Rights) were concession to anti-federalists in order to secure ratification.
13-15 (post-civil war civil rights) were necessary to alter fundamental law to deal with political consequences of conflict (of course, 14 & 15 were circumvented for almost a century following end of Reconstruction).
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Charles: 14th has been reperverted by current Supreme Court.
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16 concerns itself strictly with establishing power of Congress to enact income tax. While such legislation quickly followed, Congress can abolish it (and may yet do so). Moreover, the only original feature of New Deal tax policy was to burden wage-earners who had not previously been subjected to income taxes (and they have borne increasing burden ever since as progressivity has been reduced).
17 (direct election of senators) rounded out change that had long been underway as voters in more than 50% of states had already gained right to indicate preference for senators and state legislatures generally followed their lead.
19 culminated struggle (sort of) that began seventy years earlier in 'granting' women voting rights that 31 states already recognized (at least partially, only about half had granted full suffrage) but it did not affect laws dealing with ownership of property, jury service, marriage & divorce, labor regulations and other women's rights issues of that day (and this one too, in some cases.).
24 (anti-poll tax) only applied to federal elections; five states still levied such tax when amendment was submitted in early 1960s and amendment was rendered superfluous by 1966 Supreme Court decision in *Harper v Virginia Board of Elections* in which states were precluded from imposing poll tax as requirement to vote in any election under equal protection clause of 14. (btw: Senate sponsor of #24 was Spessard Holland who had been in state legislature in 1930s when Florida eliminated poll tax... abolition in Florida had been no indication that racial bigotry was softening, rather state legislators were concerned that opposition interest groups could purchase poll tax receipts in efforts to defeat them. As for Holland, he voted against every single civil rights bill introduced during his four terms in US Senate).
26 (18 yr. old voting rights) was attempt to channel and contain political activity of late 1960s & early 1970s by 'liberal' Dems who thought they would benefit electorally.
ERA defeat indicates how amending process can frustrate wishes of majority as it was designed to do. Of course, many constitutuonal scholars - conservative about and protective of the document - think it is fortunate that the constitution has not been amended more frequently and become laden with prohibitions and complications (as state constitutions tend to be) making governing difficulty. Which is where all that 'living constitution' and 'open texture' interpretability stuff enters the picture. Michael Hoover
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Charles: Sorry, I didn't quite understand you. Are you saying there have been more amendments than the "moderated" half of Madison's balancing act would have anticipated ?
Anyway, my comment was not meant to endorse Madison or the Framers' as fully conscious dialecticians or Marxists in 1783. However, the basic idea that the Constitution, the Fundamental law, could be changed by a republican process, some input from the population , is a radical one for the times. And the basic idea is still radical today, especially if we make some improvements along the lines suggested by your criticism. We should amend the Amendment Clause to make it by direct vote of the People; and other improvements.
The concrete historical point for American communists is that it gives us the basis for advocating revolution legally. It is legal to propose an amendment to the fundamental law of the land abolishing private property. I realize full well that this is theoretical and can't actually be won without a mass ( I mean bigtime) movement. But the theoretical possibility is important given the history of McCarthyism. To propose that the Constitution be thoroughly overhauled and transformed , pursuant to the Amendment provision, from a capitalist code to a socialist code is not illegal or criminal under the Constitution itself. This would not have been true under most or all previous fundamental laws of the world.
CB