Amendment by "Inalienable Right
to Alter or Abolish Government"
Peter Suber, Paradox of Self-Amendment Table of Contents
- A. Amending v. altering or abolishing
- B. The right to alter or abolish government self-applied
A. Amending v. altering or abolishing
The third sentence of the Declaration of Independence reads:
That to secure these rights [to life, liberty, and the pursuit of happiness], governments are instituted among men, deriving their just powers from the consent of the governed; that, whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it, and to institute a new government, laying its foundations on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.
This paragraph continues, counseling against use of this right "for light and transient causes". However, a "long train of abuses and usurpations", especially one "evincing a design to reduce [the people] under absolute despotism" suffices to trigger not only the right, but also the duty, "to throw off such government and to provide new guards for their future security".
No comparable language is to be found in the federal constitution; the only right to alter or abolish government found expressed there is the AC. We almost had such language in the constitution, however. James Madison proposed to insert the following language,[Note 1] strongly asserting
That the people have an indubitable, inalienable, and indefeasible right to reform or change their Government, whenever it may be found adverse or inadequate to the purposes of its institution.
Note that in Federalist #39 Madison wrote that "a majority of every national society" is "competent at all times....to alter or abolish its established government." Alexander Hamilton repeated the principle in Federalist #78, referring to
that fundamental principle of republican government which admits the right of the people to alter or abolish the established Constitution whenever they find it inconsistent with their happiness.
Hamilton, like Jefferson, says the right should not be exercised under a mere "momentary inclination". But he departs from both Madison and Jefferson, apparently, by linking the right closely to an AC, and denying that the right authorizes an act "incompatible with the provisions in the existing Constitution" or could make any act "justifiable in a violation of those provisions". In this way Madison and Hamilton reflect the basic divisions on the right to alter or abolish government that we will find in the state constitutions. Madison finds it a real power stated in plain language, while Hamilton finds it a grandiloquent statement of principle that legally adds nothing to an express AC.
However, comparable language obviously derived from the Declaration of Independence may be found in many state constitutions side by side with the ACs. What is the relation between an express AC and an express right to alter or abolish government? Is the latter surplusage, a mere rhetorical flourish? That is unlikely in view of the fact that most state constitutions put the right to alter or abolish government, not in a grand preamble, but in an otherwise enforceable Bill of Rights along with rights to free expression, freedom from unreasonable searches, and so on.
No litigant that I know of has contended in court that the Declaration of Independence provides a right to amend the federal constitution independently of the federal AC. However, a "peace convention" called by Virginia after the Civil War proposed several amendments to the constitution, one of which would have recognized the
reserved power of the people in three-fourths of the states to call a national convention to alter, amend, or abolish this constitution....
The proposal also specified that such power shall be independent of Article V, and shall "never be questioned."[Note 2] The proposed amendment was submitted to Congress for consideration under Article V, but was not officially proposed by Congress to the states. It is unclear whether the "peace convention" believed that there was already a right to alter and abolish government independently of Article V, which it intended to solidify through textual recognition, or whether it believed there was no such right, which it intended to add by amendment.
One commentator believes the Declaration of Independence already provides a right to alter the federal constitution independently of Article V. William MacDonald proposes wholesale revision of the federal constitution in his book, A New Constitution for a New America.[Note 3] He believes Article V does not suffice for such broad change, and finds an adequate power in the Declaration. But he offers no legal reason to suppose either that Article V does not suffice or that amendment through the Declaration of Independence would be anything other than revolution sanctioned by the same moral principles that sanctioned our first revolution.
The question of the relation of an AC to a right to alter or abolish government is raised most pointedly for state constitutions, which often contain both rights in equally explicit language in equally enforceable sections of the constitution.
One difference should be noted at the outset. In the absence of entrenchment clauses, the power to amend through an AC is limited only by procedures such as supermajority votes, limits on the number of amendments that may be submitted at one time, minimum time intervals between amendments, and so on. Clauses containing a right to alter and abolish government, on the other hand, are usually silent or extremely vague on procedure, but do not hesitate to outline substantive conditions that would justify exercising the right.
The Declaration of Independence, for example, allows a right to alter or abolish government only when government has become "destructive" of the rights to life, liberty, and the pursuit of happiness, and only when a "long train of abuses and usurpations" reveals a "design" to put the people under "absolute despotism". After government is abolished it must be rebuilt in such form as "shall seem [to the people] most likely to effect their safety and happiness." This language provides no bright lines, but that does not make it legally useless. It is at least as clear and determinate as "high crimes and misdemeanors", "commerce...among the several states", "all laws which shall be necessary and proper", "due process", or "equal protection of the laws".
The language of most state clauses is less specific. The people are sometimes given the right to alter or abolish government whenever "the public good may require it" (Iowa, Nevada, North Dakota), whenever "the public welfare may require it" (Utah), or whenever the people "deem it necessary" (Colorado, Ohio). Other states recognize the right only "when [the people's] safety and happiness require it" (Maine), or "when their safety, prosperity, and happiness require it" (Massachusetts). The most specific language recognizes the right "whenever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual" (New Hampshire). Two states leave the right unlimited and unqualified (Indiana, South Carolina). Many of the other states limit the right with language suggesting procedural restraints, although of the weakest kind, for example, saying that the people may alter or abolish their government "in such manner as they deem proper" (Kentucky, Oregon, Pennsylvania, South Dakota, Tennessee, Wyoming) or "in such manner as they may deem expedient" (Maryland, Texas) or "in such manner as shall be judged most conducive to the public weal" (West Virginia). South Dakota limits the right to alter or abolish government to "lawful and constitutional methods", Rhode Island limits it to "an explicit and authentic act of the whole people",[Note 4] and West Virginia vests it not in "the people" but in a "majority of the community".
Just what a state could intend by including such a right when procedures for amendment are already provided is far from clear. The language of the Declaration of Independence, imitated by most of the states at least in the phrase "alter or abolish", was in its historical context seeking a justification for revolution, or for severance from one's erstwhile sovereign without its consent. Thomas Jefferson may have chosen the words "alter or abolish" in part for their euphemistic effect, suggesting something closer to amendment than revolt. But clearly a right to revolt was sought by Jefferson and clearly one was read into his language.[Note 5] Leaving aside the questions whether Jefferson sought a legal or moral right to revolt, and whether a legal right to revolt is a contradiction in terms, we may still ask whether the states that took over the "alter or abolish" language meant to incorporate into their constitutions a right to revolt of any kind, or merely a strange sort of amendment power, or just a grandiloquent statement of principle. Put this way the question is historical and the answer undoubtedly varies among the states.
The theory that the right to alter or abolish is just a rhetorical gesture, though a very solemn one, may be true of some states, but not all. The South Dakota clause that limits the right to "lawful and constitutional methods" evidently adds nothing to the law beyond the AC, unless it is a symbolic statement of principle. But most states put the right in their Bill of Rights with other rights that are unquestionably propositions of living law routinely enforced by courts, and do not qualify them with words that limit them, in effect, to the AC. Even New Hampshire, however, which has the most specific language (noted above), and which places the right in its Bill of Rights, has added to the statement of the right what must be called a rhetorical embellishment. After announcing the right, the clause continues, "The doctrine of non-resistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind." The flourish, ironically, casts doubt on the legal validity of the preceding right and the possibility that New Hampshire's specific language may be symbolic casts doubt on the more formulaic clauses of other states.
But we know that at least two of the state clauses have been taken as propositions of law announcing an operative right. The present constitution of Tennessee (1870) is the only one in the nation's history, I believe, that names as its enabling authority the right to alter or abolish government found in its predecessor (1834),[Note 6] rather than the prior AC, or federal enabling legislation, or something else. Similarly, the Rhode Island Supreme Court declared in 1935 that a constitutional convention could be called by the legislature under the authority of the right to alter or abolish (which in Rhode Island is actually a right to "make and alter") when the AC was silent on the permissibility of conventions. In Re Opinion to the Governor, 55 R.I. 56, 178 A. 433 (1935).[Note 7] The Rhode Island right to "make and alter" required "an explicit and authentic act of the whole people", which the court held was to be had by a simple statewide majority vote, not on the permissibility of calling the convention, but to ratify the product of any convention called unilaterally by the legislature. Id. at 437.
This suggests another possible theory. Many states distinguish "amendment", which is piecemeal, from "revision", which is wholesale. Of the states drawing this distinction some do and some do not have an AC capable of both powers. Conceivably the right to alter or abolish is the only way some states have found to justify wholesale revision in the absence of explicit accommodating language in their AC, or in the case of some early constitutions, in the absence of an AC itself.[Note 8] This theory may also explain why California, for example, which lacked a right to alter or abolish in its constitution of 1849, had to resort to self-amendment so that its AC would provide for the replacement of the whole constitution. Some state language supports this theory more than others. The Massachusetts clause, for example, recognizes the "right to institute government, and to reform, alter, or totally change the same" (emphasis added) which suggests that the drafters did not believe that "reform" or "alter" sufficed.
Similarly, the right to alter or abolish could differ from an ordinary AC by including the right to "abolish". The power to amend might reasonably be restricted to exchanging one form of government for another, but never for exchanging government for non-government. Of course, some state clauses speak of abolishing the form of government, not government per se, and might be as limited as ACs in this regard. But insofar as revolt includes the abolition of government per se, then a true right to revolt probably could not be read into an AC, even if most revolutionary goals could be accomplished in principle through an AC. Against this theory is the reflection that neither Thomas Jefferson nor the framers of the state clauses valued anarchy enough to recognize a right to create it.
Every right to alter or abolish clause without exception declares that the right is "inalienable" or "indefeasible". That suggests that this particular type of amendment power is continuing, not self-embracing. It also suggests an appeal to higher law. Although inalienable rights may be guaranteed by ordinary positive law, the clauses may intend to secure positive law by moral law. They may be guarantees of the liberties by which the nation and its states came into being, including the right to revolt, without intending to be guarantees "in law". They may exist, even in otherwise enforceable sections of the constitution, as symbols of the state's principles and willingness to declare them in august form. That would make them more than rhetorical adornment and in different ways both more and less than a legal right to amend. They would be legally unenforceable declarations of a right underlying and transcending law.
Very few states have settled the relationship of their AC to their right to alter or abolish, even in part. Maryland is one of the few states with a "Declaration of Rights" in its constitution that is less authoritative than the other sections. It is much more than a long rhetorical ornament, however, for its language does control when the main text is unclear. That was the holding of Anderson v. Baker, 23 Md. 531 (1865). For more than a century after Anderson, the AC and the right to alter or abolish coexisted in an unsettled state. But in 1970 Bourbon v. Governor of Maryland, 258 Md. 252, 265 A.2d 477 held that the AC in the main text was "clear, explicit, and unambiguous."[Note 9] That in effect reduced the right to alter or abolish to a merely symbolic statement.
Iowa is one of the few other states to address even partially or indirectly the relationship of the AC to the right to alter or abolish government. In Iowa an amendment defectively passed by the legislature but properly ratified by the people, under the ordinary AC, was held invalid and not cured by a clause in the constitution declaring that "all political power [lies] in the people." Koehler v. Hill, 60 Iowa 543, 14 N.W. 783, 15 N.W. 609 (1883).
The theory that the right to alter or abolish is an appeal to higher law is supported by the difficulty of conceiving a positive law right to revolt or overthrow positive law.[Note 10] Moreover, only the Colorado clause extends the right to the alteration or abolition of the state constitution. All other states speak only of altering or abolishing "government" or the "form of government". This suggests a right to revolt or act, rather than a legalistic right to amend language. But at the same time it forces us to ask whether a right to revolt, in a constitution, is a legal or moral right, and whether a legal right to revolt is a contradiction in terms. If it is a moral ("higher law") right, then is its placement in the constitution merely for emphasis, or for the symbolic effect of gravely treating it as if it were law? If it is a legal right, then we must either give up the idea that revolution is inherently illegal, or admit that a contradiction has been elevated to constitutional law. The former is a question which I could contentedly answer either way,[Note 11] and the latter is an acceptable consequence of the acceptance theory.
B. The right to alter or abolish government self-applied
Finally we must ask whether the right to alter or abolish government can give rise to the paradox of self-amendment. Can the rule of change represented by the right be self-applied? If the typical language of "inalienability" and "indefeasibility" makes the right continuing, not self-embracing, then most self-application is precluded. More precisely, all self-imposed limitations will be revocable. But if the right is continuing, then it is limited and cannot amend itself in ways that would diminish its power or scope irrevocably and this may be inconsistent with the broad language of some of the clauses. But the whole question of self-application is avoided if the right is read to apply to governments only, not to documents or to powers of the people. Then the right is beyond its own application, and is immune to itself, and self-diminution would be impossible.
The interpretation I prefer, however, is that the acceptance of the people possesses contingent, continuing omnipotence and cannot irrevocably deprive itself of the power to validate the ultimate premises of the legal system (see Section 8.B). This amounts to an alegal right to revolt that cannot irrevocably be amended, repealed, or limited by any legal process. It need not be stated in a right to alter or abolish clause, nor should stating it be taken to render it repealable or limited, as if confined to the mutability and specificity of the language expressing it. But on the other hand the unfailing rights of acceptance are well expressed by the right to alter or abolish clauses, not in every particular, but as strong, general statements of the superiority of the will of the people to their government and form of government, even if the rules of the latter make it supreme, exclusive, incompletely self-entrenched and mutable only by its own procedures.
All this is to say, however, that the clauses are somewhat confused. They may express well the serious convictions of their framers, in a place somewhat germane to those convictions. But it is like inserting into the rulebook for Monopoly the proposition that no one has to play if they don't want to, and that if they begin, then they can quit, and that if everyone playing agrees, then they can start with less money or make other rule changes. It may not go without saying to some players, so the insertion may be an effective communication to some of its audience. But inserting it into the rulebook creates an unnecessary air of paradox, since it is not a rule but a meta-level reflection on the rules. But this paradox is more amusing than calamitous. For players who modify the rules of monopoly cannot modify this meta-level reflection, even though it is stated as a rule. They may introduce new rules to limit their freedom to change the rules, but they are still free to change the new rules. Even when they feel bound, they can quit.[Note 12]
1. Herbert Vandenberg Ames, The Proposed Amendments to the Constitution of the United States During the First Century of Its History, Washington, D.C.: Government Printing Office, 1897, at p. 185. [Resume]
2. This proposal is discussed in Appendix 1.C.6. [Resume]
3. New York: B.W. Huebsch, 1921. MacDonald's views are discussed in Appendix 1.E. [Resume]
4. This language is the result of Rhode Island's hard experience with the legality of the Dorr Rebellion. See the entry under Rhode Island in Appendix 2. [Resume]
5. On the attempt by Jefferson and others to find a legal justification for the revolution, see R.A. Humphreys, "Rule of Law and the American Revolution," Law Quarterly Review, 53 (1937) 80-98, and Edward Dumbauld, "The Sound Principles of the Revolution," Pennsylvania Bar Association Quarterly, 47 (1976) 554-66. Focusing specifically on Jefferson's language in the "right to alter or abolish" clause is Raymond E. Hayes, "Revolution as a Constitutional Right," Temple University Law Quarterly, 13(1938) 18-29, at pp. 19-20. [Resume]
6. The current Tennessee constitution (1870) declares in the preamble that it was made in convention called by the legislature under the authority of the right to alter or abolish government found in the prior constitution (1834). The AC of the 1834 constitution did not explicitly provide for amendment by convention, although it permitted any number of amendments to be proposed and ratified at once. The preamble to the 1834 constitution, by contrast, names the AC of the prior constitution (1796) as its authority. See the entry on Tennessee in Appendix 2. [Resume]
7. Some of the controversy in the background of this decision is recounted by Clifford C. Hubbard, "The Issue of Constitutional Amendment in Rhode Island," American Political Science Review, 30 (1936) 537-40, at pp. 539-40. [Resume]
8. The following state constitutions contained no AC at all: Connecticut (1776), New Hampshire (1776), New Jersey (1776), New York (1777), North Carolina (1776), Ohio (1802) (?), Pennsylvania (1790) (?), South Carolina (1778, 1776), Virginia (1864, 1851, 1829, 1776), and a proposed but rejected Massachusetts constitution (1778). The law and scholarly opinion on the permissibility of amendment under such constitutions is well summarized in In Re Opinion to the Governor, 55 R.I. 56, 178 A. 433, 449-51 (1935). Note that the Connecticut "constitution" of 1776 and the two South Carolina "constitutions" of 1776 and 1778 were found by courts to be mere statutes. Hence they were amendable by all the rules of change valid for statutes, including other statutes. On amendment without express authority, see also Lester Bernhardt Orfield, The Amending of the Federal Constitution, University of Michigan Press, 1942, at pp. 39, 138, 157. [Resume]
9. The Bourbon case did not arise because a party proposed to amend the constitution through the right to alter or abolish; hence, unfortunately, the case did not address the relation of the AC to the right to alter or abolish government. [Resume]
10. Kelsen's view that revolution can be justified by positive international law is criticized by A.M. Honore, "Reflections on Revolutions," The Irish Jurist, n.s. 2 (1967) 268-78, at p. 272. Other positive law justifications, such as necessity, are considered by Honore at pp. 274-75, and by S.A. de Smith, "Constitutional Lawyers in Revolutionary Situations," Western Ontario Law Review, 7 (1968) 93-110, at p. 100. Both Honore and de Smith consider non-positivistic justifications as well; for more on these, see J.M. Eekelaar, "Principles of Revolutionary Legality," in A.W.B. Simpson (ed.), Oxford Essays in Jurisprudence, Second Series, Oxford University Press, 1973, pp. 22-43. [Resume]
11. Nevertheless I have assumed throughout this essay that revolution is unlawful by definition, and that acts that exceed their authority or new regimes that are not authorized by their predecessor's AC or equivalent are revolutionary. I was led to this usage primarily for convenience, in order to have a word ("revolution") for amendments that violate the AC. But the question should not be thought closed by making these conventions of word usage explicit. Revolutionary acts may be thought illegal by definition at the time and place where they occurred, but they are frequently cured by retroactive legislation or acquiescence in the regimes they establish, and are cheered as lawful in other places. And of course many "revolutionary acts" are often arguably legal, some even unarguably legal, at the time and place where they occurred, and are interpreted as revolutionary only by custodians of law unwilling to respect provisions of law against their interest. These phenomena of legal history cannot be blinked away by dictionary definitions. [Resume]
12. Those interested in this line of thought may wish to look at the first rule of the game Nomic, in Appendix 3 (enjoining players to obey the rules of the game), and then try to play a game in which that rule is amended or repealed. [Resume]
This file is one section of the book, The Paradox of Self-Amendment. Return to the Table of Contents.
Department of Philosophy,
Earlham College, Richmond, Indiana, 47374, U.S.A.
email@example.com. Copyright © 1990, Peter Suber.