December 2005: The Living Constitution: Amendments for the 21st Century

About December 2005

If you could add any three amendments to the Constitution, what would they be?

We put this question to Nobel Laureate James M. Buchanan, founder of the “public choice” school of political economy, and his answer kicks off this, the premiere issue, of Cato Unbound. Yale law professor Akhil Reed Amar, author of America’s Constitution: A Biography; Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit; and William A. Niskanen, chairman of the Cato Institute, offer their critical assessment of Buchanan’s proposals — and just might name amendment ideas of their own.

As new nominees to the Supreme Court are contested and confirmed, questions of constitutional interpretation figure prominently in public debate. Ideologues left and right worry that new judges will read their ideology into the Constitution, slowly reshaping and reinterpreting it, decision by decision. Of course, the Constitution provides for the possibility of it own rapid reshaping through amendment. Rather than fight over judges who will reshape the Constitution over time, perhaps Americans ought to debate directly amending the Constitution.

Are there amendments that could improve the prospects for liberty, prosperity, and security in the 21st century? If so, what are they? Would any have a chance in today’s political climate? Is it dangerous to meddle with Constitution through amendment?

You don’t have to be a federal judge, a law professor, or a Nobel Prize-winner to think about the future of the Constitution. Suppose you could push a button and have your heart’s desire for amendments XXVIII, XXIX, and XXX. What would they be?

Lead Essay

Three Amendments: Responsibility, Generality, and Natural Liberty by James M. Buchanan

Nobel laureate James M. Buchanan argues that the Constitution should include amendments requiring a balanced budget, forbidding discrimination in outlays, and guaranteeing the natural liberty to exchange within and across our borders. “The ‘regulatory state’ has not worked,” Buchanan writes. “Abandonment of its constitutional legitimacy offers a starting point for constructive dialogue.”

Response Essays

Reply to Buchanan by Akhil Reed Amar

Yale Law School professor Akhil Reed Amar says Buchanan’s essay offers a “veritable feast” for thought, but he turns up his nose at the menu, arguing that Buchanan’s amendments are either insufficiently supported by theory and evidence, likely to lead to distasteful consequences, or so indefinite in formulation that it is hard to say whether or not they could be made feasible.
Reply to Buchanan by Alex Kozinski

Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit maintains that an America that would ratify Buchanan’s proposed amendments would be an America that didn’t need them. They may not be the best ideas even if feasible, he argues. Under the nondiscrimination amendment, Kozinski predicts, “we’d have Bush v. Gore going on 365 days a year, all over the country.”
Reply to Buchanan by William A. Niskanen

Cato Institute chairman William A. Niskanen agrees with Buchanan about ends, but disagrees about means. Niskanen offers fixes for Buchanan’s amendments and sets forth three tantalizing alternative amendments: have state legislatures – once again – elect U.S. Senators, allow the states to nullify federal law, and allow states to secede.

The Conversation

Response to Comments by James M. Buchanan
Notes on the 17th Amendment and States’ Rights by Akhil Reed Amar
Odds and Ends by William A. Niskanen
Senators and the 17th by Akhil Reed Amar
Call Me a Panglossian by Alex Kozinski
One More Round: The 17th and Constitutional Interpretation by William A. Niskanen
A Few Final Thoughts on Constitutional Federalism by Akhil Reed Amar

Lead Essay

Response Essays

The Conversation

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