VOL.6 NO. 12 (December, 1996) PP. 176-178.

EXPLICIT AND AUTHENTIC ACTS: AMENDING THE U.S. CONSTITUTION, 1776-1995 by David E. Kyvig. Lawrence, Kansas: University Press of Kansas, 1996. 604 pp. Cloth $55.00. Reviewed by Donald W. Jackson, Department of Political Science, Texas Christian University.

As a comprehensive source for the political/constitutional history surrounding both successful and failed efforts to amend the U.S. Constitution, David Kyvig's, EXPLICIT AND AUTHENTIC ACTS, fills the bill. The book is clearly written and rich in detail; however, perhaps because of its intended detailed treatment of proposed and accomplished amendments, it is likely to be more useful as a source of background information than for its analysis.

The book's conceptual perspective is explained in the preface when, in commenting on Bruce Ackerman's 1991 book, WE THE PEOPLE, Kyvig suggests that Ackerman failed to develop fully the differences between formal and informal constitutional change. Kyvig also believes that most scholars have "undervalue[d] the singular role of formal amendment in American constitutionalism." Accordingly, this book seeks to address the imbalance by offering (p. xi) a "historical appraisal that finds unparalleled power in what George Washington called 'an explicit and authentic act' of constitutional articulation." Kyvig argues that constitutional change rarely can be safely secured except through constitutional amendment. For a notable example, he suggests (pp. 289, 313-14) that Franklin Roosevelt's failure to secure the New Deal through a constitutional amendment affirming the expansion of federal regulatory power was a serious mistake that led to continuing conflict over the division of powers between the national government and the states. To undergird that suggestion, in Chapter 1 Kyvig places the idea of establishing and binding a government through written constitutional constraints, subject to formal but workable amendment process, at the core of the American experience.

Among the notable failures of the Articles of Confederation was the requirement of unanimous state consent to amendments. The failed efforts of Congress in the 1780s to overcome the obstacle of unanimity informed the drafting of Article V of the U.S. Constitution. The provision for amendment in Article V came late in the convention. Kyvig concludes (p. 55) that "the members of the Philadelphia convention clearly wanted to create an amending system that, without rendering the Constitution unstable, would allow generally agreed-upon change to take place."

In Chapter 4 Kyvig presents a vivid account of efforts to ratify the U.S. Constitution, including (p. 69) the antifederalists' raising the absence of a bill of rights as a serious flaw. That account and Kyvig's review in Chapter 5 of the proposal by Madison in June 1789 of a bundle of amendments the bulk of which eventually were ratified as the Bill of Rights may serve as excellent brief treatments of these subjects for students.

In his treatment of the origins of judicial review in Chapter 6 Kyvig raises again his conceptual "battle flag" favoring the importance of the amendment process when he argues (p. 128) that, "A great deal of controversy over judicial review has arisen in the twentieth century, predicated on the assumption that it delivered absolute and final constitutional authority to the courts. Constitutionally speaking, judicial review never became the last word. A judicial decision could always be appealed to the ultimate sovereignty of the people through the amendment process." The difficulty with that position is that, properly redirected, it applies to constitution amendments as well. To suggest that either a constitutional decision (rendered by judges) or that a constitutional amendment (produced through a difficult amendment process but not necessarily by the "ultimate sovereignty of the people") produce "last words" on the U.S. Constitution might be true for a political system frozen at a particular point in time, but neither can be true for an ongoing system in which mere mortals are the only conscious actors. Kyvig does, however, concede the importance of John Marshall's contribution to the meaning of Constitution in Marbury v. Madison and McCulloch v. Maryland. Considering the first seventy-five years of the U.S. Constitution, excepting the impact of the Bill of Rights itself, how could it be otherwise?

There are a number of interesting historical tidbits throughout this book that were new to me. For example, Kyvig's detailed explanation (p. 140) of Calhoun's "nullification" proposal makes intelligible what often is dismissed pejoratively without explication. Calhoun's actual proposal was that a state convention would be convened to consider a federal law, and if the delegates agreed to protest the law, their protest would be delivered to Congress. Congress could either repeal the law or propose a constitutional amendment by the usual process. Ratification of the amendment would be required to sustain the law; otherwise it would be annulled. The net result in effect would still have been to give a single state a veto over federal legislation, but the devil is in the details.

Reinforcing the point that there is nothing new under the sun, Kyvig's narrative discloses that in the last decades of the nineteenth century Christian fundamentalists proposed a constitutional amendment which would have declared (p. 189) that "Almighty God [is] the Author of National Existence and the source of all power and authority in Civil Government, Jesus Christ [is] the Ruler of Nations, and the Bible [is] the formation of law and the supreme rule for the conduct of nations." Fundamentalists, it seems, were concerned (then as now) about the secularization of American government. I was also unaware that (p. 190) "Between 1894 and 1910 Congress received at least nine proposals to alter the Constitution's preamble to express trust in or acknowledge the authority of a Christian God."

It is notable that Kyvig's discussion in Chapter 8 of the Civil War amendments contains, implicitly, a critique of his own objective of demonstrating the importance of formal amendments. He notes (p. 155-56) that "The Civil War amendments, adopted during a brief moment when political idealism and opportunity crested simultaneously, would thereafter lie dormant for decades before the political culture allowed their implementation." While I have no quarrel with that sentence, its clear implication is that constitutional amendments--by themselves (as well as constitutional decisions made by judges--by themselves) may be empty rhetoric. Something more is needed for rhetoric to be translated into reality. Kyvig suggests that a supportive political culture is required. Others might suggest that the wills and resources of political authorities (executive, legislative or judicial) and sometimes the special efforts of political activists (Charles Houston and Thurgood Marshall come to mind) to infuse empty rhetoric with conscious purpose. But that is true for either constitutional amendments or for decisions of federal courts.

Which brings us back to Kyvig's argument (p. 289) about "[t]he failure of the New Deal to articulate itself in specific constitutional terms." Discussions abound in papers in the FDR Library about whether or when to propose a constitutional amendment to support New Deal legislation. A letter of May 29, 1935, from Felix Frankfurter to FDR proposed to "Let the Court strike down any or all of them [New Deal legislation] next winter or spring [1936] especially by a divided court. Then [emphasized] propose a constitutional amendment giving the national Government adequate power to cope with national economic and industrial problems." Roosevelt himself was persuaded that the amendment process was too slow and difficult. In his letter to Frankfurter of February 9, 1937 (written four days after the submission of his "court-packing" plan), FDR counted the chances of achieving a two-thirds vote in this session" as no better than "fifty-fifty." He also saw the ratification process possibly extending into the 1940 national election. So he chose not to seek a constitutional amendment, and made the serious blunder of submitting his court-packing plan. Kyvig notes such considerations by the Roosevelt administration but argues that the failure of FDR to seek an amendment was a fundamental mistake. However, in the end the Supreme Court's decision's beginning in April 1937 probably produced as much fundamental constitutional change as a broadly-worded amendment. Of course, no one can know for certain, but it is not the case that the constitutional revolution ratified by judicial decisions beginning in 1937 has proven evanescent. Contemporary criticisms of New Deal--Fair Deal--Great Society programs usually have involved policy rather than constitutionality.

Kyvig's faith clearly is in the amendment process, and he is consistent in his assessment through the end of the book. While readers may question (as I have) whether his faith is entirely warranted (or sustained by analysis), his book remains a valuable resource on the history of the amendment process. It certainly warrants the attention of all those who are interested in the process of constitutional change.