1 Bernstein, Richard B. with Agel, Jerome, Amending America: If We Love the Constitution So Much, Why Do We Keep Trying to Change It? (New York: Random House, 1993)Google Scholar and Kyvig, David, Explicit & Authentic Acts: Amending the U.S. Constitution, 1776–1995 (Lawrence, KS: University of Kansas, 1996)Google Scholar. These volumes are worthy successors to Grimes, Alan P., Democracy and the Amendments to the Constitution (Lexington, MA: Lexington Books, 1978)Google Scholar. Also see Anastaplo, George, The Amendments to the Constitution: A Commentary (Baltimore: Johns Hopkins University Press, 1995).Google Scholar

2 Vile, John R., Encyclopedia of Constitutional Amendments, Proposed Amendments, and Amending Issues, 1789–1995 (Santa Barbara, CA: ABC-CLIO, 1996)Google Scholar. An earlier study had examined such proposals during the first hundred years of the nation's history. See Ames, Herman, The Proposed Amendments to the Constitution of the United States during the First Century of its History (New York: Burt Franklin; 1970Google Scholar reprint).

3 Levinson, Sanford, ed., Responding to Imperfection: The Theory and Practice of Constitutional Amendment (Princeton: Princeton University Press, 1995)CrossRefGoogle Scholar; and Ackerman, Bruce, We the People: Foundations (Cambridge, MA: Harvard University Press, 1991)Google Scholar. Ackerman's book, which has stirred considerable debate both within the political science and legal communities, is the first in a projected three-volume set. His second volume We the People: Transformations (Cambridge, MA: Harvard University Press, 1998)Google Scholar was just recently published.

4 Vile, John R., The Theory and Practice of Constitutional Change in America (New York: Peter Lang, 1993).Google Scholar

5 Caplan, Russell L., Constitutional Brinkmanship: Amending the Constitutional by National Convention (New York: Oxford University Press, 1988)Google Scholar; The Constitutional Convention as an Amending Device, ed. Hall, Kermit L., Hyman, Harold M., and Sigal, Leon V. (Washington, D.C.: The American Historical Association and The American Political Science Association, 1981)Google Scholar; and Weber, Paul J. and Perry, Barbara A., Unfounded Fears: Myths and Realities of a Constitutional Convention (New York: Praeger, 1989)Google Scholar. Also see, Edel, Wilbur, A Constitutional Convention: Threat or Challenge? (New York: Praeger, 1981).Google Scholar

6 Vile, John R., Rewriting the United States Constitution: An Examination of Proposals From Reconstruction to the Present (New York: Praeger, 1991)Google Scholar and Boyd, Steven R., Alternative Constitutions for the United States: A Documentary History (Westport, CT: Greenwood Press, 1992).Google Scholar

7 Vile, John R., Contemporary Questions Surrounding the Constitutional Amending Process (Westport, CT: Praeger, 1993)Google Scholar. Also see Levinson's, Responding to Imperfection and Vile, John R., Constitutional Change in the United States: A Comparative Study of the Role of Constitutional Amendments, Judicial Interpretations, and Legislative and Executive Actions (Westport, CT: Praeger, 1994).Google Scholar

8 Vile, John R., The Constitutional Amending Process in American Political Thought (New York: Praeger, 1992).Google Scholar

9 These are too numerous to mention here, but the post-Civil War Amendments and those of the Progressive Amendment have been especially popular topics for books. A number of books were published to coincide in 1995 with the seventy-fifth anniversary of the ratification of the Nineteenth Amendment. Many of these books are cited in the bibliography ofWheeler, Marjorie, ed., Votes For Women! (Knoxville, TN: University of Tennessee Press, 1995), pp. 328–39.Google Scholar

10 Ackerman, , We the People, p. 40Google Scholar. Ackerman cites the era involved in writing the Constitution, that involved in writing the post-Civil War amendments, and the New Deal era as the three great “constitutional moments” in American history.

11 Lieber, Francis, Amendments of the Constitution, Submitted to the Consideration of the American People (New York: Loyal Publication Society, 1865)Google Scholar. This essay is reprinted in Lieber, Francis, Reminiscences, Addresses, and Essays (Philadelphia: J.B. Lippincott & Co., 1881), pp. 137–79Google Scholar. The Reminiscences contains no commentary on this piece, and it is not described in any detail in any of the major works on Lieber.

12 His most important books included his Legal and Political Hermeneutics; or, Principles of Interpretation and Construction in Law and Politics, 3rd ed., ed. Hammond, William G. (St. Louis, MO: F. H. Thomas and Company, 1880)Google Scholar; his Manual of Political Ethics 2nd. ed., ed. Woolsey, T. D., (Philadelphia: Lippincott, 1875)Google Scholar, and his On Civil Liberty and Self Government (Philadelphia: Lippincott, 1853).Google Scholar

13 Lieber was apparently the first professor in the United States to have such a title, one that he himself requested. See Farr, James, “Hermeneutic Political Science: The Forgotten Lesson of Francis Lieber,” History of Sociology 6–7(1986–1987): 65.Google Scholar

14 Thayer, , “The Life, Character, and Writings of Francis Lieber,” in Lieber, Reminiscences, Addresses, and Essays, pp. 13–14Google Scholar. For further analysis of Lieber's connection to Columbia University, see Dorfman, Joseph and Tugwell, Rexford G., “Francis Lieber: German Scholar in America,” Columbia University Quarterly 30 (1938): 159–90, 267–93.Google Scholar

15 Farr, James, “Francis Lieber and the Interpretation of American Political Science,” Journal of Politics 52 (11 1990): 1028–29CrossRefGoogle Scholar This department was responsible for the founding of the Political Science Quarterly. See Somit, Albert and Tanenhaus, Joseph, The Development of American Political Science: From Burgess to Behavioralism (Boston: Allyn and Bacon, Inc., 1967), pp. 35–36.Google Scholar

16 Carrington, Paul D., “The Theme of Early American Law Teaching: The Political Ethics of Francis Lieber,” Journal of Legal Education 42 (09 1992): 356, 361.Google Scholar

17 Lieber thus once wrote, “I know that my work belongs to the list which begins with Aristotle, and in which we find the names of Thomas More, Hobbes, Hugo Grotius, Puffendorf.”Quoted in Friedel, Frank, Francis Lieber: Nineteenth-Century Liberal (Baton Rouge: Louisiana University Press, 1947), pp. 164–65Google Scholar. For a similar self-assessment, see ibid., p. 276.

18 For reflections on Lieber, see O'Brien, Michael, “‘A Sort of Cosmopolitan Dog’ Francis Lieber in the South,” The Southern Review 25 (04 1989): 308–322.Google Scholar

19 Congress had proposed two such amendments, but neither had been ratified. The first of these amendments would have stripped citizenship from American citizens who accepted foreign titles of nobility; the second was the Corwin Amendment, which attempted to preserve the Union by guaranteeing the continuing existence of slavery. See Vile, , Encyclopedia of Constitutional Amendments, pp. 83–84 and 307.Google Scholar

20 The second longest such period would follow in the years between ratification of the Fifteenth and Sixteenth Amendments, from 1870 to 1913.

21 Kammen, Michael, A Machine That Would Go of Itself: The Constitution in American Culture (New York: Alfred A. Knopf, 1987), pp. 22–23.Google Scholar

22 SeeKoch, Adrienne, Jefferson & Madison: The Great Collaboration (New York: Oxford University Press, 1964), pp. 62–96.Google Scholar

23 Lieber, , Amendments of the Constitution, p. 5.Google Scholar

24 The biblical book of Revelation threatens plagues upon anyone who adds to or subtracts from its words. See Revelation, 22:18–19. Because this warning comes at the end of the Bible, some apply its admonitions to any changes in that volume. But, for the possibility of changes in the interpretations of revealed texts, see Sanford Levinson, “On the Notion of Amendment: Reflections on Daube's, David ‘Jehovah the Good,’” S'vara: A Journal of Philosophy and Judaism 1 (Winter 1990): 25–31.Google Scholar

25 As will be discussed below, Lieber favored piecemeal amendments rather than a constitutional convention to revise the entire document.

26 Lieber, , Amendments of the Constitution, p. 5.Google Scholar

27 ibid., pp. 5–6.

28 At the Constitutional Convention of 1787, Virginia's George Mason had thus noted that, “The plan now to be formed will certainly be defective, as the Confederation has been found on trial to be. Amendments therefore will be necessary, and it will be better to provide for them, in an easy, regular and Constitutional way than to trust to chance and violence.” See Farrand, Max, The Records of the Federal Convention of 1787 (New Haven, CT: Yale University Press,1966), III: 203.Google Scholar

29 This common analogy appears to have been first used by Joseph Story. See Vile, , Encyclopedia of Constitutional Amendments, p. 265.Google Scholar

30 In comparing the Newtonian and Darwinian views of government, Woodrow Wilson would later note, in reference to Montesquieu's separation of powers, that “The trouble with this theory is that government is not a machine, but a living thing. It falls, not under the theory of the universe, but under the theory of organic life. It is accountable to Darwin, not to Newton.” See Wilson's, Constitutional Government in the United States (New York: Columbia University Press, 1961; reprint of 1908 edition), p. 56Google Scholar.

Although he used organic imagery, Lieber was solidly opposed to Darwin, noting that Darwin and his colleagues would “not only prove to you that your grand-mother was a hideous gorilla, but⃛ do it with enthusiasm and treat you almost like a heretic if you will not agree.” Quoted in Freidel, Francis Lieber, p. 415.

31 Lieber, , Amendments of the Constitution, p. 6Google Scholar. For similar thoughts, see Lieber, , On Civil Liberty and Self Government, p. 18.Google Scholar

32 Lieber, , Amendments of the Constitution, p. 7.Google Scholar

33 ibid. In his Manual of Political Ethics, Lieber would make a similar comparison at II, p. 107, when he observed that “The cause of civilization and of a liberty worthy of man is neither promoted by Asiatic stagnation, —whose Koran says, Every new law is an innovation, every innovation is an error, and every error leads to eternal fire,—nor by the arrogance of a jacobin declaring war against everything that exists and has existed.”

34 Lieber had made a similar point in his Legal and Political Hermeneutics. See Farr, “Francis Lieber,” p. 1037.

35 See Fisher, Sidney George, The Trial of the Constitution (New York: Da Capo Press, 1972; reprint of J.B. Lippincott & Co., 1862)Google Scholar. For summary and analysis, seeVile, , The Constitutional Amending Process, pp. 97–102.Google Scholar

36 Lieber, , Amendments of the Constitution, p. 8.Google Scholar

37 ibid.

38 ibid., p. 9. This passage makes for an interesting comparison to James Madison's thought in Federalist, No. 51, where he observed that, “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.” See Hamilton, Alexander, Madison, James, and Jay, John, The Federalist Papers (New York: New American Library, 1961), p. 322.CrossRefGoogle Scholar

39 Lieber, , Amendments of the Constitution, p.9.Google Scholar

40 Brown, Bernard E., American Conservatives: The Political Thought of Francis Lieber and John W. Burgess (New York: Columbia University Press, 1951), p. 28.Google Scholar

41 Jefferson had proclaimed “‘that the earth belongs in usufruct to the living’; that the dead have neither powers nor rights over it.” See letter to James Madison dated 6 September 1789. The Works of Thomas Jefferson, ed. Ford, Paul Leicester (New York: G. P. Putnam's Sons, Knickerbocker Press, 1905), VI: 3–4Google Scholar. Oliver Wendell Holmes, Jr. would later express similar sentiments. See Baker, Liva, The Justice From Beacon Hill: The Life and Times of Oliver Wendell Holmes (New York: Harper Collins, 1991), p. 543.Google Scholar

42 Lieber, , Amendments of the Constitution, p. 9.Google Scholar

43 ibid.

44 Calhoun had thought deeply about the amending process and had made a number of other proposals. See Vile, , The Constitutional Amending Process, pp. 79–93.Google Scholar

45 Scott v. Sandford, 19 How. (60 U.S.) 393 (1857).

46 Lieber, Amendments of the Constitution, pp. 10–11.Google Scholar

47 ibid., p. 11. Similarly, the Declaration of Independence has been described as “the foundation of Lincoln's political philosophy.” See McPherson, James, Abraham Lincoln and the Second American Revolution (New York: Oxford, 1990), p. 126Google Scholar. For the author who, in interpreting Lincoln, has probably best and most continuously developed this theme, see Jaffa, Harry V., Crisis of the House Divided: An Interpretation of the Issues in the Lincoln-Douglas Debates, rev. ed. (Chicago: University of Chicago Press, 1982), pp. 308–29Google Scholar. Also see Gerber, Scott D., To Secure These Rights: The Declaration of Independence and Constitutional Interpretation (New York: New York University Press, 1995).Google Scholar

48 ibid., p. 12.

49 ibid.

50 ibid.

51 Speaking primarily of state constitutions, Jefferson thus wrote: “Some men look at constitutions with sanctimonious reverence, and deem them like the arc [sic] of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I knew that age well; I belonged to it, and labored with it. It deserved well of its country. It was very like the present, but without the experience of the present; and forty years of experience in government is worthy of a century of book-reading; and this they would say for themselves were they to rise from the dead.“ See The Works of Thomas Jefferson, XII: 11.

In this same work, Jefferson had also noted that, “We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors” (ibid., p. 12).

Lieber may or may not have recognized the parallels. He was a strong opponent of Jeffersonianism and once referred to Jefferson as ” the very underminer of the Union—a most mischievous ferret.” Freidel, Francis Lieber, p. 415.

52 Lieber, ,Amendments of the Constitution, p. 12Google Scholar. For a similar argument, see Lieber, , Manual of Political Ethics, II: 99.Google Scholar

53 ibid.

54 ibid., p. 35.

55 ibid. In his Manual of Political Ethics, II: 103, Lieber would noted that: “If … we ascribe superior wisdom to our forefathers, we must have a specific reason for it; they must have established an institution when peculiar circumstances favored them to obtain superior wisdom as to this subject, or to see with greater disinterestedness, because the time may have been fitter for it. Enthusiasm for what is great and good may have been more general, as, for instance, when our forefathers struggled for independence.”

56 ibid.

57 His ideas included a single six-year term for the president, an item veto of individual items within appropriation bills for the president, clarification of the constitutionallanguage relative to direct taxes (an issue that would eventually result in adoption of the Sixteenth Amendment), and outlawing polygamy. Lieber also favored allowing members of the cabinet to appear before Congress, but he did not believe that the establishment of such a practice would require a constitutional amendment. ibid., pp. 31–32.

58 ibid., p. 36.

59 ibid.,p. 37.

60 ibid., p. 38. In an earlier, and much shorter, publication, A Letter to Hon. E.D. Morgan, Senator of the United States on the Amendment of the Constitution Abolishing Slavery (New York: Loyal Publication Society, 1865), p. 3Google Scholar, Lieber had noted that the effect of the proposed Thirteenth Amendment, without such a provision, would be that Southern states, no longer bound by the three-fifths clause, “would be rewarded with an enlarged representation.”

61 Lieber, , Amendments of the Constitution, p. 39.Google Scholar

62 ibid., p. 32.

63 Friedel, Frank, Francis Lieber, p. 376.Google Scholar

64 ibid., p. 33.

65 This provision is generally understood to apply to children bom of foreign diplomats who are living in the United States.

66 Section 2 of the Fourteenth Amendment was the first specifically to indicate thatstates were free to confine voting rights to men alone, and this inclusion stimulated opposition by advocates of women's rights. This language influenced the Supreme Court0027;s decision in Minor v. Happersett, 21 Wall. (88 US.) 162 (1875) denying that the Fourteenth Amendment extended voting rights to women. See Wheeler, Marjorie S., ed., One Woman, One Vote: Rediscovering the Woman Suffrage Movement (Troutdale, OR: New Sage Press, 1995), pp. 31–35Google Scholar. Lieber, who held strongly to the view that women should be confined to the domestic sphere, had been strongly opposed to women's suffrage. Friedel, , Francis Lieber, pp. 385–86.Google Scholar

67 U.S. Constitution, Amendment 14, Section 3. To note a further parallel, Lieber had proposed in hisLetter to Hon. E.D. Morgan, that there be “No assumption of theSouthern debt.” This provision was effectively incorporated into Section 4 of the Fourteenth Amendment, which provided, in relevant part, that “neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but allsuch debts, obligations and claims shall be held illegal and void.”

68 There is similar, albeit not identical, language in the Fifteenth Amendment providing that, “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”

69 See, for example, Reed v. Reed, 404 U.S. 71 (1971) and Frontiero v. Richardson, 411 U.S. 677 (1973) on gender discrimination and Baker v. Carr, 369 U.S. 186 (1962) and Reynolds v. Sims, 377 U.S. 433 (1964) on legislative apportionment.

Given his arguments in Legal and Political Hermeneutics, Lieber would certainly have been aware of the advantages of using more precise as opposed to more open-ended language.

70 The clause provides that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. ”

71 16 Wall. (83 U.S.) 36 (1873). This decision was largely based on a distinction incorporated into the Fourteenth Amendment between state and national citizenship. Significantly, Lieber's proposals did not articulate such a distinction.

72 This language is taken from the last of Lieber's proposed amendments, Amendments to the Constitution, p. 39.

73 Had the provision been so interpreted, it might have been especially useful for “incorporating” provisions in the Fourth through Eighth Amendments (all of which relate to the rights of criminal defendants) to the states, a process that has proceeded in twentieth century jurisprudence largely through the due process clause.

74 Lieber, , Amendments of the Constitution, p. 39.Google Scholar

75 Freidel, , Francis Lieber, p. 378Google Scholar. Friedel notes that Lieber referred to the mob as “the bilge water of the ship of state” (p. 160).

76 ibid., p. 378. Lieber's Letter to Hon. E.D. Morgan, listed as No. 79, would appear to have preceded his Amendments of the Constitution, designated as No. 83, and yet No. 79 cites the text of the current Thirteenth Amendment. This further suggests that Lieber had formulated his seven proposals prior to their publication in 1865.

77 ibid., p. 378. By contrast, this author has found no mention of Lieber, in James, Joseph B., The Framing of the Fourteenth Amendment (Urbana, IL: University of Illinois Press, 1956)Google Scholar, in Maltz, Earl M., Civil Rights, the Constitution, and Congress, 1863–1879 (Lawrence, KS: University Press of Kansas, 1990)Google Scholar, in Nelson, William E., The Fourteenth Amendment: From Political Principle to Judicial Doctrine (Cambridge, MA: Harvard University Press, 1988)Google Scholar, or in Kull, Andrew, The Colorblind Constitution (Cambridge, MA: Harvard University Press, 1992).Google Scholar

78 Wendell Phillips seems to have had an important role in convincing abolitionists that constitutional amendments were worth pursuing. See Kull, , The Colorblind Constitution, pp. 54–66.Google Scholar

79 Thus Woodrow Wilson would classify the amending process as “so slow and cumbersome” as to be movable by “no impulse short of the impulse of selfpreservation, no force less than the force of revolution.” Wilson, Woodrow, Congressional Government (Boston: Houghton Mifflin, 1885 and 1913), p. 242Google Scholar. For Wilson's thoughts on separation of powers, see note 26 above.

Similarly, Christopher Tiedeman, a South Carolina born theorist who was, like Lieber, educatedin Germany and who would end his career teaching in New York, appeared to prefer changes in the “unwritten Constitution” to the enactment of formal amendment. See Tiedeman, Christopher G., The Unwritten Constitution of the United States (New York: G.P. Putnam's Sons, 1890)Google Scholar. Tiedeman referred to Lieber's Hermeneutics (p. 152).

80 For criticisms of the amending process immediately prior to the adoption of theseamendments, see Vile, , The Constitutional Amending Process, pp. 137–56Google Scholar. The Sixteenth Amendment gave constitutional sanction to the income tax; the Seventeenth Amendment provided for direct election of U.S. Senators; the Eighteenth Amendment (later repealed by the Twenty-first) provided for national alcoholic prohibition, and the Nineteenth Amendment provided for women's suffrage.

81 Thus, Bruce Ackerman in We the People has devoted special attention to themanner in which changes in constitutional interpretation that accompanied the acceptance of the New Deal were brought about without specific sanction of a constitutional amendment.Similarly, Akil Reed Amar has argued that it is possible to amend the United States Constitution through use of initiative and referendum mechanisms not specifically mentioned in the Document but presumed to be founded in the rights of “We the people” to sanction such changes. See Amar, , “The Consent of the Governed: Constitutional Amendment Outside Article V,” Columbia Law Review 94 (03 1994) 1131–1210CrossRefGoogle Scholar and Amar, , “Philadelphia Revisited: Amending the Constitution Outside Article V,” University of Chicago Law Review 55 (Fall 1988): 1043–1104CrossRefGoogle Scholar. For critiques see, Dow, David R., “When Words Mean What We Believe They Say: The Case of Article V,” Iowa Law Review 76 (10 1990): 1–66Google Scholar; Vile, John R., “Legally Amending the United States Constitution: The Exclusivity of Article V's Mechanisms,” Cumberland Law Review 21 (1990–1991): 271–307Google Scholar; and Ishikawa, Brendon T., “Amending the Constitution: Just Not Every November,” Cleveland State Law Review 44 (1996): 303–43.Google Scholar

82 Kyvig, Explicit & Authentic Acts. Kyvig has taken his title from description of the amending process made by George Washington. SeeKyvig, , Explicit & Authentic Acts, p. xi.Google Scholar

83 Kathleen Sullivan has referred to “amendment fever.” See Sullivan, Kathleen, “Constitutional Constancy: Why Congress Should Cure Itself of Amendment Fever,” The Records of the Association of the Bar of the City of New York 50 (12 1995): 724–35.Google Scholar

84 See, for example,Seto, Theodore P., “Drafting a Federal Balanced Budget Amendment That Does What It Is Supposed to Do (And No More),” Yale Law Review 106 (03 1997): 1449–1536.CrossRefGoogle Scholar