How Failed Attempts to Amend the Constitution Mobilize Political Change by Roger C. Hartley (review)

According to legendary Green Bay Packers' coach Vince Lombardi, "[W]inning isn't everything; it's the only thing." There are many reasons to doubt Lombardi, but Hartley offers a particularly interesting one for any student of American politics and constitutional development. In this slim but rich book, he argues that failures to amend the United States Constitution have affected, with notable frequency, sometimes deep and important changes in the polity. He offers a good answer to skeptics (like this reviewer) who have questioned why rational persons would invest scarce time, money, and energy in an enterprise that Article V of the Constitution makes nearly impossible—the formal amendment of the Constitution. The answer is that one can often win a great deal even if the effort fails to achieve its ostensible objective. One can readily understand why NeJaime, whose most famous article is entitled "Winning through Losing," contributed an enthusiastic blurb.¹

Hartley is clearly knowledgeable about general American history. Not surprisingly, he spends many pages on the battle for the Equal Rights Amendment (era) in the 1970s, which was a "failure." But equally obvious is the fact that American law and culture has changed in line with the most likely meanings that courts would have assigned to the highly abstract text. Those who might lament that the super-majority rules of Article V formally doomed the era might also agree that its opponents, who had sufficient power to block it, could not really hold back the transformations that they feared.

Hartley offers many other examples. A proper understanding of contemporary American politics relating to international treaties is not possible without consideration of the ostensible failure to pass the Bricker Amendment in the 1950s.

Readers who are aware of the two examples just mentioned may not be aware of many others. Hartley argues, for example, that attempts to amend the Constitution—including the threat of secession—helped to reverse the disastrous embargo of American shipping adopted by Thomas Jefferson and maintained by his successor James Madison. Most interesting is Hartley's emphasis on the importance of the proposed Wheeler—Bone amendment, which would have allowed Congress to override objectionable Supreme Court decisions. He attributes the fabled "switch in time" by the Supreme Court in 1937 far more to fears that that amendment might gain further support than to the inept "Court-packing plan" disastrously adopted by Franklin Roosevelt.

The argument is not brand new; Hartley correctly notes that Ackerman also focuses on that proposed amendment in his own path-breaking work.² Similarly, he agrees with Ackerman and Golove that the extremely important movement from treaties to executive agreements during the past seventy-five years is a response, at least in part, to proposals to amend the Constitution by eliminating the veto, as exercised with regard to the Versailles Treaty, upheld by one-third plus one of the Senate. A case in point is the North American Free Trade Agreement (nafta), an executive agreement that required only majority approval by both houses rather than ratification by two-thirds of the Senate.³

Not all efforts at amendment have the paradoxical happy ending of "winning by losing." One consequence, after all, of proposing amendments is, as with the era, to generate oppositional movements. But Hartley argues that even these consequences may redound to the overall benefit of the public, inasmuch as they generate national argument and deliberation about matters of real importance.

Although the book is an excellent example of how to mine American political history, it will almost certainly frustrate readers who look for rigorous empirical testing of its undoubtedly interesting hypotheses. To be sure, it is not clear how to determine the relative causal importance (or lack of same) of, say, Franklin Delano Roosevelt's court-packing plan, the Wheeler—Bone amendment, or simply the Supreme Court's own "internalist" doctrinal reasoning, with regard to explaining the...