Growing Efforts to Reshape Constitution Bring Warning

WASHINGTON — In the 105th Congress, it seems proposals to amend the U.S. Constitution have become the solution of first resort.

So far, 99 proposals to change the Constitution have been introduced this year in the House or Senate. Although most have yet to be acted upon, last week the House passed, 310 to 114, a proposed amendment that would outlaw the “desecration of the flag.” If approved by two-thirds of the Senate and three-fourths of the states, this 28th Amendment would overturn a 1989 Supreme Court ruling that flag burning is a protected form of free speech.

But reacting to this trend, a newly formed group of historians, legal scholars and former government officials is calling for caution and restraint. In their view, the onslaught of suggested amendments comes dangerously close to a desecration of the Constitution.

“Our Constitution is a carefully crafted charter meant to set forth fundamental political ideals and a framework for governance. It should not be menaced by an amendment-of-the-week assault,” says former U.S. appeals court judge and White House counsel Abner J. Mikva.

Mikva is co-chairman of Citizens for the Constitution, along with former Rep. James Courter (R-N.J.). “The issue is not any single proposal. The issue is all of them and the destabilizing effect they have on our constitutional system,” Courter says.

As the group begins its work, its members admit they cannot answer a basic question: When, if ever, is it appropriate to amend the Constitution?

Georgetown law professor Louis M. Seidman and public interest lawyer Alan Morrison said they are trying to devise standards for when a change in the nation’s fundamental charter might be justified.

Morrison terms this effort “a very difficult process.” Most everyone agrees the Constitution should be changed only rarely and for a compelling reason, he said, yet nearly everyone can also think of a proposal or two that would strike them as compelling and justified.

The surge in proposed amendments has come in the wake of the 1994 midterm election that swept the GOP into control of both houses of Congress for the first time in 40 years. Republicans have pushed amendments to require a balanced budget, limit terms for members of Congress, allow prayer in public schools, outlaw abortion and declare English the nation’s official language, as well as the one to forbid flag burning. Most of the 99 amendments introduced this year offer slightly different versions of term-limit, balanced-budget and school-prayer proposals. Some of the others include ending life tenure for judges, changing the definition of “citizenship” and abolishing the income tax.

Liberals and women’s rights groups, for their part, championed the equal rights amendment throughout the 1970s, which fell just short of approval from the required number of states. This year, Democratic leaders sponsored a campaign-finance proposal that would change the 1st Amendment to allow new restrictions on spending by political parties and candidates.

Since 1791, when the 10 amendments that comprise the Bill of Rights were added to the Constitution, only 17 amendments have been adopted. Three followed the Civil War and changed the charter fundamentally by ending slavery and ensuring all persons “the equal protection of the laws.”

Several other amendments altered the process of government. For example, the 22nd Amendment in 1951 limited presidents to two terms in office. The 24th Amendment, ratified in 1964, outlawed the poll tax in federal elections, once a means of keeping poor and black citizens from the ballot box. The latest amendment--the 27th, ratified in 1992--prohibits pay raises for members of Congress during their current term in office.

The least-successful amendments, historians agree, are those that try to resolve matters of social policy. The classic example is the prohibition on “intoxicating liquors.” They were outlawed by the 18th Amendment in 1919, which in turn was repealed by the 21st Amendment in 1933.