Unintended Consequences of Constitutional Amendment

Constitutional amendments, like all laws, may lead to unanticipated and even undesired outcomes. In this collection of original essays, a team of distinguished historians, political scientists, and legal scholars led by award-winning constitutional historian David E. Kyvig examines significant instances in which reform produced something other than the foreseen result. An opening essay examines the intentions of the Constitution’s framers in creating an amending mechanism and then explores unexpected uses of that instrument. Thereafter, authors focus on the Bill of Rights and subsequent amendments, addressing such subjects as criminal justice procedures, the presidential election system, the Civil War’s impact on race and gender relations, the experiment in national prohibition, women’s suffrage, and, finally, limits on the presidency.

Together these contributions illuminate aspects of constitutional stability and evolution, challenging current thinking about reform within the formal system of change provided by Article V of the Constitution. Forcefully demonstrating that constitutional law is not immune to unanticipated consequences, the eight scholars underscore the need for care, responsibility, and historical awareness in altering the nation’s fundamental law.

DAVID E. KYVIG is a professor of history at Northern Illinois University. He is the author of Repealing National Prohibition and Explicit and Authentic Acts: Amending the U.S. Constitution, 1776-1995, which received the 1997 Bancroft and Henry Adams Prizes.

This collection will be welcomed by constitutional historians and other scholars. Kyvig's idea of drawing together the experience of several important amendments is unique and important.

Given the recent clamor for constitutional amendment, the book’s title—and the reminder of its issues—is sufficient cause to hope it is widely distributed on Capitol Hill. That said, there is much to be gained from examining the fine essays that David E. Kyvig has collected. The title raises a difficult question: what counts as an unintended consequence? Wisely, Kyvig does not limit the authors to any particular conception of unintended consequences. Their free-ranging inquiry into the consequences of various constitutional amendments yields a bounty of useful insights.