[Congressional Record Volume 142, Number 80 (Tuesday, June 4, 1996)]
[Senate]
[Pages S5752-S5754]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     IN DEFENSE OF THE CONSTITUTION

  Mr. FEINGOLD. Mr. President, I rise today to speak about the U.S. 
Constitution and what I believe is the essential need to exercise 
extreme restraint in regard to amending this great document. As recent 
articles in a number of publications and newspapers have pointed out, 
this Congress, Mr. President, the 104th Congress, perhaps unlike any in 
recent memory, seems intent on amending the U.S. Constitution. I do not 
question the sincerity of those efforts. The history of our 
Constitution and those amendments that have been adopted, as well as 
the mechanism crafted by the framers for adopting amendments, counsels 
that caution govern any efforts to amend this great document, our 
Constitution.
  Since its ratification in 1788, the Constitution of the United States 
has been the single greatest protector of individual rights known to 
man. It is superior to any of its predecessors, and has been the 
benchmark against which all other constitutions since adopted have been 
judged. Perhaps the greatest tribute to the U.S. Constitution, Mr. 
President, and the greatest tribute to those who drafted the document, 
is that in the 208 years since its ratification, the people of this 
Nation have only amended it on 27 occasions. This equates with only 
about one amendment every 7.7 years.
  However, Mr. President, this figure is a little bit misleading when 
one looks closely at the actual history accompanying those 27 
amendments. It becomes obvious that those specific instances where the 
people of this Nation have moved to amend their Constitution have 
actually been few and far between, and those efforts have typically 
only been in response to some fundamental deficiency or flaw in our 
democratic system of government.
  As we look at the 27 amendments, Mr. President, for example, the 
first 10 amendments to the Constitution, the Bill of Rights, were 
adopted as part of an agreement to actually garner support for the 
passage of the underlying Constitution itself; 10 of the 27 were 
adopted at the very outset of our country. Anti-Federalists who opposed 
the Federal Constitution were opposed to its adoption unless and until 
a more explicit statement on the rights of man was added to the 
Constitution. The fervent belief that certain rights should remain 
squarely within the province of the individual manifests itself in the 
Bill of Rights.
  While the Bill of Rights was adopted almost simultaneously with the 
Constitution, becoming effective in 1791, what the Bill of Rights did 
was set a tone which on most subsequent occasions has been followed. 
That tone was that constitutional amendments should be reserved for 
response to shortcomings in our democratic way of governance in 
general, not to attend to the emotion or issue of the day each time. I 
think this is evidenced by the adoption, following the Civil War of the 
13th, 14th, and 15th amendments. These three amendments, much like the 
Bill of Rights, spoke directly to the rights and equality of men, and 
extended to African-Americans rights previously that were denied to 
them, denied to them under the original Constitution, and even under 
the original Bill of Rights.
  Further, many of our constitutional amendments deal directly with the 
ability of citizens to participate in democracy, they go to the very 
core of whether everyone can participate. The 17th, 19th, 24th and 26th 
amendments improve citizen involvement in elections by allowing for the 
direct election of Senators, extending the franchise to women, 
abolishing the poll tax, and reducing the voting age. The essence of 
democracy itself, Mr. President, is participation. These amendments 
fostered that fundamental element of our Nation. For that reason, I 
think they were all probably appropriate uses of the unusual and unique 
ability to amend the Constitution.

  Mr. President, obviously there have been other amendments albeit few 
rising to the level of the importance of the Bill of Rights and the 
Civil War amendments. However, I have noted these not to argue their 
importance, but to illustrate that throughout our history most 
amendments to the Constitution have been restricted to addressing 
systemic problems with our Government--problems which actually inhibit 
one's ability to participate in the benefits of democracy. In other 
words, these have to do with basic errors or problems that have arisen 
in our system that simply mean somebody cannot participate fully in our 
democracy. They have not, almost in every case, been amendments that 
have to do with one particular issue at a time that is dividing our 
country.
  Of course, on one glaring occasion we did depart from this standard 
and we adopted the ill-fated 18th amendment--the prohibition amendment. 
The result of this misguided venture into social policy resulted 14 
years later in the adoption of another amendment, 1 of the 27, the 21st 
amendment, which repealed prohibition. So that is 2 of the 27, a lousy 
idea that did not work, followed by the repeal of this venture into 
social policy.
  Another aspect of our Constitution which argues for restraint in 
amending this document is found in the Constitution in article V. 
Article V establishes two methods for amending the Constitution. First, 
the Constitution may be amended by constitutional convention. The 
second method allows the Constitution to be amended if approved by two-
thirds majority of both Houses of Congress, and then, of course, 
ratified by three-fourths of the States. These explicit methods for 
amendment were, in essence, a compromise between the unworkable 
unanimity requirement for amending the Articles of Confederation, one 
of the reasons that we had a constitutional convention, and the notion 
held by many of the Framers that some mechanism must exist to address 
potential shortcomings in the new Constitution. The compromise that is 
embodied in article V established a difficult but not impossible 
standard for amendment which, like the Constitution itself, I think, 
has served this Nation very well.
  While article V protects the people from constitutional uncertainty 
and alteration based solely upon the will of an ever-changing political 
majority, it also provides an avenue for amendment when it is truly 
necessary.
  The result of this has been to preserve the Constitution as it was 
intended to be. With only 27 amendments, it remains a general statement 
of principles used to help define a new nation, as opposed to a step-
by-step method of governance.
  In so doing, I think article V has prevented the U.S. Constitution 
from simply becoming littered with a flurry of well-meaning but 
unnecessary amendments. Article V has prevented the Constitution from 
evolving into a document that would be almost unrecognizable in terms 
of length and scope to the Framers, who drafted it over 200 years ago. 
This is the really important thing, Mr. President, because it points 
out the fundamental distinction between a Constitution and ordinary 
statutes.
  There is a big difference in our system. As I understand it, there is 
less of a difference in the system in England. There, there is no 
written Constitution; Parliament is supreme. Technically speaking, 
Parliament can pass any law, and it then becomes the supreme law of the 
land. We have broken that system. We chose to have a simple, brief 
document that was greater than the legislature, that was greater than a 
parliament, that was greater than a Congress. It is the notion of a 
limited written Constitution. That is the difference between us and the 
English system. And, in fact, it was part of the reason, in my view, 
why the revolution was fought. Our citizens wanted a document over 
which no legislative body had supremacy, except for in the very unusual 
circumstances that were

[[Page S5753]]

outlined in article V, or a combination of a very significant 
supermajority of Congress and very significant supermajority of States 
together would have to be the only ones that could ever amend that 
document.
  As Prof. Kathleen Sullivan pointed out recently in an article 
cleverly entitled, ``Constitutional Amendmentitis'':

       The very idea of a Constitution turns on the separation of 
     the legal and the political realms. The Constitution sets up 
     the framework of the Government. It also sets forth a few 
     fundamental political ideals (equality, representation, 
     individual liberties) that place limits on how far any short-
     term majority may go. This is our higher law. All the rest is 
     left to politics.

  Mr. President, let there be no doubt that had this standard that 
Kathleen Sullivan very eloquently stated had not prevailed throughout 
our history, the fundamental character of our Constitution would be 
greatly diminished today.
  In the course of our history, it is estimated that nearly 11,000 
amendments to the Constitution have been introduced. Had not our 
predecessors and the standards embodied in article V combined to reject 
the vast majority of these efforts, it is uncertain what our 
Constitution might look like today. It, obviously, would not look 
anything like the Constitution. You probably could not find anything in 
there that the Founding Fathers had put together. It would not be, as 
Chief Justice John Marshall argued, a framework of the great outlines 
of our society.
  So let us say that throughout our history people had proposed in each 
legislative session and gotten through a constitutional amendment about 
things like school prayer or balancing the budget, or flag burning--I 
am sure there would have been a variety of social concerns that each 
session of our Congress would have tacked onto the Constitution. Let me 
tell you something else because I believe in the whole Constitution. I 
think our first amendment would not look anything like it does today. I 
also think that the second amendment to the U.S. Constitution, which I 
believe in, and which protects the right to bear arms, might not be 
there either.
  See, that is what happens when you start down this road. When anybody 
gets a bright idea, instead of trying to pass a bill that can be 
changed without going through the constitutional process, somebody 
says, ``Let us do a constitutional amendment.'' Well, that is the 
greatest threat to our basic liberties than anything we can do 
legislatively--whether it be the right to free speech or a person's 
right to simply have a firearm if they want to go hunting. Somebody 
could try to get rid of that. If we go down this road, there is no end 
to it.
  It is with this Nation's reluctance to amend the Constitution in mind 
that I rise today to voice my concern that the lessons of our 
constitutional history have been lost in the 104th Congress. I have had 
the honor of serving on the Senate Judiciary Committee for a little 
more than a year now, along with the Presiding Officer. And in that 
time the full committee has voted on three amendments to the 
Constitution, and, in the near future, as many as four more may be 
forthcoming.
  To date in the 104th Congress, over 135 constitutional amendments 
have been proposed. But what is more troubling is that the 104th 
Congress has voted on more amendments to the Constitution than any of 
its predecessors in recent history. The other body has voted on four 
amendments, while this body has voted on two and debated a third. As 
the distinguished retired Judge Abner Mikva wrote in the Legal Times 
recently, ``The 104th Congress has taken floor action on more 
constitutional amendments than any other Congress in the last 30 
years.''
  I note that an amendment to require a supermajority to raise taxes 
was brought to the House floor recently solely because it was tax day--
April 15. They knew they were not going to win on that vote. That was 
well known. It was brought to the floor simply so that proponents could 
stand up on tax day and make speeches. The thought that an amendment to 
the Constitution could be offered solely because it offers a good sound 
bite opportunity seems to be a little indefensible. I think it is a 
departure from the time when the Framers met in Philadelphia, guided 
only by a tenuous opportunity to craft a framework to guide a new 
Nation.
  Throughout the course of many of the debates on amendments, the 
argument has been made that Congress should simply pass proposed 
amendments and let the people of the Nation decide their fate. However, 
to do so defies our sworn obligation to uphold the Constitution of this 
Nation. I fell into this trap here. I think many of my colleagues know 
of my strong desire to see campaign finance reform in this country. The 
way we do things around here, sometimes an amendment is tacked onto 
another bill. On one occasion, I actually voted for a sense-of-the-
Senate resolution that would have started us down the road toward a 
constitutional amendment that would have overturned Buckley versus 
Valeo. It would have limited how much could be spent in campaigns. I 
understand how people feel when they are frustrated and want to turn to 
a constitutional amendment. I think I made a mistake, and I would not 
vote that way now because I realize that everybody has a bright idea 
about how to change the Constitution. We need to find a way to solve 
our problems and do our job without messing up the fundamental document 
that has helped make this country so great. So this session I am 
working on legislation, along with the Presiding Officer, where through 
the legislative process we will try to change the campaign system 
without changing the U.S. Constitution's first amendment. So all of us 
have fallen into this trap. This is not an attempt to suggest that it 
is only Democrats or only Republicans. It is just very tempting. But it 
is a mistake.
  The Framers of the Constitution set a very high standard for 
amendment and explicitly intended that the Members of Congress play a 
significant role in adopting any changes to our national charter. In my 
estimation, Mr. President, this is a responsibility of the highest 
order and not one we should abandon.
  In fact, what separates the U.S. Constitution from many State 
constitutions, which can go so far as to protect the right to due 
process and the right to fish in the same document, is that the 
Congress and the people must ratify amendments. We should remain 
mindful of the Framers' intent and the obligations each of us is sworn 
to uphold. In other words, we are not supposed to kick out 
constitutional amendments in the Congress and just say let everybody 
decide on it. That is not what was intended. It was intended that we 
should give it extremely close scrutiny, and in only very rare 
circumstances should we send constitutional amendments out for 
ratification.
  Mr. President, if adopted, the amendments considered in the 104th 
Congress would signal the biggest single constitutional remodeling 
since the Bill of Rights. It is an effort which I believe is 
unnecessary and ill conceived. It is certainly not consistent with our 
history of constitutional amendment.

  There can be little doubt that many great challenges lie before our 
Nation as we head toward a new century. However, the Constitution 
cannot provide the courage or answers we need to solve our problems, 
nor was it intended to do so. Ultimately, the responsibility for this 
Nation lies with the people, the people in this Congress and the people 
who send us here to do their work.
  For over 200 years the Constitution has served this Nation well and 
it is essential to the continuing development of our young Nation that 
the Constitution remain a statement of general principles. In charting 
a different course, one which allows the Constitution to serve as the 
method of addressing each difficult challenge that faces this Nation, 
inevitably we sacrifice the integrity of this document.
  We will lose the fundamental integrity of the Constitution which I 
believe underlies everything we do.
  We must guard against the U.S. Constitution becoming what James 
Madison feared would be little more than a list of special provisos.
  I hope that as we continue our work here in this highly political 
year we will bear Madison's concerns in mind as well as the history 
surrounding efforts to amend the Constitution. It is a history worth 
following. A history which defines not only the nature of this great 
document but also defines the fundamental character of this Nation. It 
is a history which has helped to ensure that this simple, yet 
brilliant,

[[Page S5754]]

document has remained the cornerstone of our freedoms. The spate of 
constitutional amendments considered during this Congress are at odds 
with this important precedent.
  By departing from the fundamental notion that our Constitution 
establishes the framework or the great outlines of our society and 
seeking to use it to address specific problems, the Constitution will 
become something less than it was intended to be. We should quell our 
desire to amend this great document and address the problems that 
confront this Nation. Although they are many, none can truly be 
attributed to a constitutional deficiency.
  Mr. President, I suggest the absence of a quorum. I yield the floor.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Ms. MIKULSKI. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Abraham). Without objection, it is so 
ordered.
  Ms. MIKULSKI. I thank the Chair.
  (The remarks of Ms. Mikulski pertaining to the introduction of S. 
1832 are located in today's Record under ``Statements on Introduced 
Bills and Joint Resolutions.'')
  Ms. MIKULSKI. Mr. President, I yield the floor and suggest the 
absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. NICKLES. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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