Book Review

After two decades of sustained attacks on judicial activism and judicial supremacy—what critics regard as de facto amendment of the Constitution by the Supreme Court—David Kyvig has produced a comprehensive history of the formal amending process. This is a valuable treatment of a much-neglected topic, full of narrative detail and irony. But the significance of the story diminishes in the twentieth century, largely because Kyvig fails to take up the rise of judicial review as a substitute for the formal amendment process. As a result, he does not succeed in providing an alternative to the legitimacy of the de facto constitutional amendments that Bruce Ackerman calls "transformations."	1
Kyvig argues convincingly that provision for amendment of the Constitution in Article Five was crucial to the ratification effort. Many who opposed the original Constitution because it lacked a bill of rights were mollified by assurances that the amending process would add one. It is ironic that the addition of the Bill of Rights did much to undermine the argument that the Constitution established a peculiarly limited form of government and, in the twentieth century, did more than anything else to wipe away state police powers that the Antifederalists were trying to protect. And it was the judiciary that used the Bill of Rights to do so. Ironically, the first formal amendments provided the engine for informal amendment by judicial review in the twentieth century.	2
The centrality of Article Five in the original Constitution makes subsequent departures into "informal" amendment more profoundly suspect, as violations of the republican principles of popular sovereignty and consent. The discussion of the importance of Article Five in the ratification and Bill of Rights debates underscores an important point about the founding era: the forms established by the Constitution were not designed for and did not promote either conservative or liberal goals, but can and have served either at different points in history.	3
What is most impressive in Kyvig's account is how formal amendments were ratified with nothing like the super-majorities that they seemed to demand. Since the amendments do not require the same ratification by popular conventions as approved the original Constitution (only one, the Twenty-First, was ratified by the popular convention mode), they almost all reflect less of an expression of popular sovereignty than the original document. This was especially the case while congressional delegations and state legislatures were grossly misapportioned. This suggests that judicial review may be less counter-majoritarian than it is usually depicted when compared to the Article Five process.	4
The most important amendments of all—the Civil War amendments—could never have been ratified apart from the crisis conditions of the Civil War. Even less did the New Deal "transformation" reflect the sort of widespread, profound, regime-founding consent of the original Constitution. But Kyvig does not make a persuasive case that the lack of formal amendment to support New Deal legislation made this constitutional revolution less permanent than it would have been with a formal basis. (Although he does provide a provocative explanation for an abiding mystery in political history, why Roosevelt chose the disingenuous court-packing plan instead of a constitutional amendment. He feared that wealthy interests would finance a campaign to defeat ratification of New Deal amendments.) Kyvig presents a vastly exaggerated view of what the New Deal's "core principles" were, suggesting that they were more comprehensive than the Great Society's. The requisite constitutional amendment would have resembled the proposed constitution for the state of New Columbia, giving government power to "advance, through every agency of government, the excellence of national life." Nor has the lack of formal amendment rendered insecure the Warren Court revolution of the 1960s.	5
After the New Deal's "abandonment of the use of Article Five to work out major new understandings of government's responsibilities," nothing was left but informal "transformations," particularly those of the Supreme Court. And it is after this period that Kyvig's account loses much of its significance and balance.	6
Kyvig's conclusion that the amending process worked as the framers intended cannot be accepted unless the Supreme Court's role as "continuous constitutional convention" is regarded as what they had in mind. He never takes up this issue systematically, but gives indications that he does assume that judicial supremacy in constitutional interpretation is normal, noting that "the amending process worked to confirm judicial rulings when efforts to reverse them failed" (370). Kyvig similarly criticizes congressional action to define unborn children as "persons" under the Fourteenth Amendment as an irregular "effort to overturn judicial rulings on constitutional doctrine by a mere majority vote of Congress rather than through the Article V process as the Founders had intended" (449).	7
Ironically, Kyvig's instinct that only formal amendment can secure constitutional revolutions is not likely to persuade judicial supremacists, and his aversion to policy-specific amendments leaves the de facto amendments of judicial activism in place. This comprehensive history of the formal amendment process will not do much to restore the centrality of the amending process in American constitutionalism.	8
Paul Moreno Hillsdale College

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