Opinion: When politics and constitutions collide

Thomas Jefferson once wrote critically of those who “look at constitutions with sanctimonious reverence, and deem them like the arc of the covenant, too sacred to be touched.” While he firmly opposed “frequent and untried changes in laws,” he argued that, in the end “laws and institutions must go hand in hand with the progress of the human mind.” In other words, as people learn and grow and change, their constitutions necessarily should too.

These words are on my mind today, with one failed constitutional amendment in our recent past and another constitutional amendment facing Kansas voters this coming November.

There have always been Americans who believe that society needs clear and unchanging constitutional rules, reflecting clear and unchanging values, or else it will fall apart. It’s undeniable that there is much truth in that belief.

But some of these people seem to express far more confidence as to the content of those values, and the operation of those rules, than is justified. Which means that when the democratically expressed interests of the people — their “mind” in Jefferson’s terms — come to challenge what those individuals assume to be necessarily unchanging rules and values, they sometimes see it as a political development that they need to save the “true” or “authentic” constitution from.

When the Kansas Supreme Court determined that the guarantee of “equal and inalienable natural rights” in the Kansas Constitution included at least a limited protection of “bodily integrity” and therefore the right of Kansas women to choose abortion, anti-abortion voters, and those who represent them, were furious, which was to be expected. But their response was to propose amending the Kansas Constitution itself, so as to make it impossible for people to legally or politically interpret the document in that way. That proposal was firmly rejected on Aug. 2.

Come Nov. 8, there will be another amendment on the ballot, this one designed to increase the power of the Legislature in Topeka, enabling it to exercise exclusive veto power over how the governor chooses to implement the laws that the Legislature itself had written and passed. This proposal, like the last one, is driven by political fury, this time to the way Gov. Laura Kelly, at the beginning of the pandemic, used the power granted her under existing laws to order school closures and take other extensive public health measures, actions that were highly unpopular with certain voters and their representatives. A legislative veto is their proposed response.

Legislative vetoes aren’t a new idea; there are plenty of good legal and theoretical arguments both for and against them. What’s notable here is not the arguments being made, but the political reality inspiring them. In both cases, we have a specific action or decision that created a conviction that something shouldn’t be politically possible — that abortion can’t possibly be interpreted as a right, or that a governor’s emergency powers can’t possibly be used in ways that a legislative majority dislikes — in turn causing people who claim to value stability looking to change the constitutional basis of those powers and interpretations themselves.

I’m with Jefferson; I don’t think constitutions are sacred, and changing them doesn’t strike me as at all illegitimate. But when the impetus behind a proposed amendment isn’t an engagement with legal or theoretical arguments, but rather a politically driven conviction, maybe voters should think twice. They did three weeks ago; whether they will again in November remains to be seen.

— Russell Arben Fox teaches politics in Wichita.


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