Unintended Consequences of Constitutional Amendment.
Athens, Georgia: University of Georgia Press, 2000. 260 pages. List of
contributors, references and index. $45.00 (cloth), ISBN 0-8203-2191-5 ISBN
0-8203-2191-5; $20.00 (paper), ISBN .
R. B. Bernstein , New York Law School.
Law of Unintended Consequences and the Unintended Consequences of the Law
valuable symposium, rooted in a 1997 conference at Bowling Green State
University, captures the intersection of two useful but overlooked lines of
investigation of American constitutional history. The first is the history
of amending the U.S. Constitution; the second is the
aftereffects--particularly the unexpected aftereffects--of lawmaking and
Whenever the American people have considered amending the Constituiton, they
have had to address three major questions. First, will nothing less than
amending the Constitution solve the problem? Is the solution to the problem
beyond the scope of the ordinary political process to achieve? Second, is
the amendment on the table the best constitutional fit between problem and
solution? Third, does the proposed amendment carry seeds of unanticipated
issues or problems? In other words, will the amendment, if ratified cause
more trouble than it will solve?
Unintended consequences pervade battles over amendments that fail to win
ratification. For example, opponents of the proposed Equal Rights Amendment
skillfully invoked such sensational issues as forced "coed bathrooms,"
drafting women into combat forces, and a parade of similar "horribles" that,
they claimed, would result from ratifying the ERA. But what of the
unintended consequences of successful constitutional amendments? Thus, the
inquiries proposed by this volume make excellent sense.
book's editor, David E. Kyvig of Northern Illinois University, is the
leading historian of the Constitution's amending process. His
introduction (pp. 1-8) sets the stage for the essays that follow. He also
contributes the first essay, "Arranging for Amendment: The Unintended
Outcomes of Constitutional Design" (pp. 9-42), which assesses the unintended
consequences of the Constitution's Article V. Kyvig shows that, as he
observes, whenever later generations have made use of the Article V process,
they have indeed met the framers' expectations that "the terms of the
Constitution should be adjusted to suit the contemporary preferences of a
supermajority consensus of the American nation" (pp. 39-40). And yet, he
argues, the experience of the 1937 Court-packing controversy and its
aftermath shifted the locus of sweeping constitutional change from uses of
Article V to battles to sway--or to intimidate--the Supreme Court as
constitutional interpreters. In light of this shift of focus of
constitutional change, Kyvig urges renewed examination of the place of the
amending process in governance under the Constitution.
J. Bodenhamer, a political scientist at Indiana University--Purdue
University Indianapolis, examines the unintended consequences of the
criminal-procedure guarantees of the Bill of Rights. "Lost Vision: The Bill
of Rights and Criminal Procedure in American History" (pp. 43-72) notes the
often conflicted history of rights protection in the context of criminal
investigation and prosecution, questioning the Supreme Court's recent trend
away from vigorous protection of those rights.
P. Currie, a law professor at the University of Chicago Law School, surveys
the unintended outcomes of the Twelfth Amendment, which reshaped the
Electoral College in the wake of the Jefferson-Burr tie of 1800 (pp.
73-109). Usefully synthesizing primary sources and existing scholarhsip to
trace the amendment's evolution, Currie reaches the unsurprising conclusion
that "constitutional changes are seldom as simple as they seem; displace a
single brick and you may end up rebuilding the entire facade" (p. 95)
Richard L. Aynes, dean and professor of law at the University of Akron
Schjool of Law, assesses the "Unintended Consequences of the Fourteenth
Amendment" (pp. 110-140). His fresh and enlightening essay notes that the
amendments' framers hoped that its citizenship clause would strengthen the
amendment's commands to state governments, but that early judicial
interpretation of that clause in the Slaughter-House Cases (1873)
actually weakened the amendment. He points out also that the due process
clause, trated almost as an afterthought by the amendment's framers,
developed a potency far beyond their expectations. Further, he juxtaposes
two unintended consequences of the equal protection clause: Although the
framers' goal of protecting African-Americans went unmet for generations,
later interpreters of the clause used it to protect corporations in ways
unimagined by the amendment's framers or ratifiers. Finally, Aynes explores
the fascinating question how the framers linked discrete clauses and
provisions to form a package for ratification by the states. He posits that
the framers so created the amendment because they believed (with some
justification) that submitting the provisions as separate amendments might
well result in partial or total failure in the ratification phase of the
J. Farmer, a doctoral candidate in history at Bowling Green State
University, joins with Donald G. Nieman, professor of history there (and the
organizer of the 1997 conference that gave rise to this volume) to focus on
"Race, Gender, and the Unintended Consequences of the Fifteenth Amendment"
(pp. 141-163). They argue that, based on political realism, the Fifteenth
Amendment's framers crafted it to leave control of the suffrage largely
where it was, within the hands of state governments, merely imposing a
federal constitutional limit on the kinds of limits that states could place
on the franchise. In so doing, the framers left an opening for
white-dominated state governments to impose seemingly race-neutral
disfranchisement statutes that excluded most African-Americans and many poor
whites from the polls. Farmer and Nieman conclude by exploring how modern
statues such as the 1965 Voting Rights Act reshaped the political terrain of
the South, paradoxically enforcing a Republican-devised Fifteenth Amendment
and revitalizing a far more conservative Republican Party in the South.
Richard F. Hamm, a historian at the State University of New York--Albany,
builds on his valuable 1995 study, Shaping the Eighteenth Amendment,
in his essay "Short Euphorias Followed by Long Hangovers: Unintended
Consequences of the Eighteenth and Twenty-first Amendments" (pp. 164-199).
As Hamm points out, the Eighteenth Amendment's most obvious unintended
consequence was its repeal by the Twenty-first. Indeed, the Twenty-first
Amendment showed the potential not only of using Article V to repeal a
ratified amendment but also that of using ratifying conventions rather than
state legislatures to ratify amendments--although these both remain roads
not taken since 1933. Furthermore, both amendments significantly expanded
the scope of the Article V amending process--by using the Constitution as a
vehicle to launch major social-reform movements--and the scope of federal
criminal law and law enforcement powers.
"The Unintended Consequences of the Nineteenth Amendment: Why So Few?" (pp.
200-234), Suzanne M. Marilley, assistant professor of history and government
at Capitol University in Columbus, Ohio, turns the theme of this volume on
its head. Her essay is drawn from her well-received 1996 study, Women's
Suffrage and the Origins of Liberal Feminism in the United States, 1820-1920,
Noting the often-bitter conflicts within the ranks of the women's rights
movement over whether and how to use the amending process to secure rights
for women, Marilley points out, "When diverse organized interests unite
around a common goal and try to create a powerful coalition, the coalition
usually lasts only long enough to achieve a single success" (pp. 200-201).
In large part, the amendment had so few unintended consequences because the
long, bitter battle to secure it thoroughly aired the arguments for and
against women's suffrage; because the amendment had groundwork prepared for
it by state statutory enactments; and because the male-dominated political
establishment and women's political organizations engaged in a long and
complex tussle over whether, when, and how women would gain increasing roles
and visibility in politics, "undermining exclusionary practices without
destabilizing the system" (p. 226).
Kyvig's lucid and engaging Afterword (pp. 235-248) explores how unintended
consequences of the Twentieth, Twenty-second, and Twenty-fifth Amendments
helped to shape the 1998-1999 crisis over the impeachment of President
Clinton. Kyvig skilfully shows how the political concept of the "lame duck"
exerted influence over both the fate of the President and thea ctions of the
"lame duck" House in December 1998. He then synthesizes the previous essays
to draw conclusions about the place of unintended consequences in
understanding the workings of constitutional texts in American public life.
essays ably survey a spectrum of unintended consequences of constitutional
amendments, which we may categorize as (1) consequences for the operation of
the constitutional system; (2) consequences for the politics taking place
within the structures of the constitutional system; and (3) consequences for
such social issues and problems as crime and law enforcement, diversity, and
essays raise two other issues as well. First, they do not address another
potential category of unintended outcomes--those for the evolution of
American values and national identity--but in part that may be because it is
more conceptual, attenuated, unfashionable, and perhaps unrecoverable by the
close-focus empirical approach characterizing this book.
second issue receives recognition from several authors in this symposium.
What import does investigating unintended consequences of constitutional
design have for the framing and adoption of the Constitution itself? To put
the question bluntly, if those who drafted and ratified the Constitution
were caught unaware by the constitutional system's unexpected workings, and
in particular by its unpleasant surprises, as they so often were, what is
the significance of that history for those who invoke original intent or
understanding or meaning underlying constitutional arrangements? Readers
of this excellent volume would do well to ponder this uncomfortable
With apologies to Hendrik Hartog--see Hendrik Hartog and William E.
Nelson, eds., Law as Culture and Culture as Law: Essays in Honor of John
Phillip Reid (Madison, Wis.: Madison House, 2000); Hendrik Hartog, ed.,
Law in the American Revolution and the Revolution of the Law (New
York: New York University Press, 1981).
See generally Richard B. Bernstein, Amending
If We Love the Constitution: Why Do We Keep Trying to Change It?
(1993; Lawrence: University Press of Kansas, 1995), chapter 14.
David E. Kyvig, Repealing National Prohibition (Chicago: University
of Chicago Press, 1979) (unaccountably and unjustifiably out of print);
David E. Kyvig, Explicit and Authentic Acts: Amending the
(Lawrence: University Press of Kansas, 1996). The latter study won the 1997
Bancroft Prize for History.
On the election of 1800, see also especially Joanne B. Freeman, "The
Election of 1800: A Case Study in the Logic of Political Change," Yale
Law Journal 108 (June 1999): 1959-1994.
Richard F. Hamm, Shaping the Eighteenth Amendment: Temperance Reform,
Legal Culture, and the Polity, 1880-1920 (Chapel Hill: University of
North Carolina Press, 1995).
Susan F. Marilley, Women's Suffrage and the Origins of Liberal Feminism
(Cambridge, Mass.: Harvard University Press, 1996).
On the relationship between the Constitution and American national identity,
see generally Bernstein, Amending America, passim.
See, e.g., R. B. Bernstein, "A New Matrix for National
Politics: The First Federal Elections," in Donald R. Kennon and Kenneth R.
Bowling, eds., Inventing Congress (Athens, Ohio: Ohio University
Press, 1999), 109-137. I am now investigating such issues with respect to
the First Federal Congress as an experiment in government.
Call Number: KF4555 .U55 2000
Constitutional amendments--United States
Constitutional history--United States
Citation: R. B. Bernstein . "Review of David E. Kyvig, ed, Unintended
Consequences of Constitutional Amendment," H-Law, H-Net Reviews, September,
“An intended consequence of able scholarship and firm
editing, essays in this coherent compendium complement others, an uncommon
feature of such efforts. The commendable result offers teachers, students,
and researchers ideas to use and analyses to exploit.”
Harold M. Hyman, review of Unintended Consequences
of Constitutional Amendment, by David E. Kyvig, ed., The American
Historical Review 107 (February 2002): 178-180.