News

Most Americans are familiar with the format of the United States Constitution — from the “We the People” preamble that begins it to the 27 amendments at the end.

But few may know that this arrangement is an outlier. Among the nearly 200 nations with constitutions, the U.S. stands virtually alone in placing amendments at the end of the document. Most other countries, and every U.S. state, integrate amendments into a single, always-updated text.

This almost singular style, adopted after Congressional debates over the Bill of Rights, has shaped not only the text of the Constitution but constitutional doctrine itself, say Duke Law professors Joseph Blocher and Lawrence Zelenak.

“That seemingly simple matter of design continues to have a massive impact on the substance and interpretation of constitutional law. Indeed, that design choice raises surprisingly hard questions about what the text of the Constitution actually is,” Blocher said.

“The practice of appending amendments without explicitly stating their effect on the original Constitution has created ambiguities that the integrated approach would have lessened. It’s not always obvious whether, or how, a provision of the original Constitution has been superseded or amended by later amendments — and the same can be true for the effect of later amendments on earlier amendments.”

That, in turn, has shaped debates over constitutional interpretation, Blocher and Zelenak write in their new paper Form Is of Some Consequence: How the Peculiar Style of Amendments Has Shaped American Constitutional Law, which also suggests that new amendments could be formatted so as to reduce ambiguities of meaning and intent.

Blocher is the Lanty L. Smith ’67 Distinguished Professor of Law and Zelenak is the Pamela B. Gann Distinguished Professor of Law at Duke University School of Law.

A form that has shaped both doctrine and discourse

As an historical document, the Constitution captures twists and turns like the 18th Amendment establishing Prohibition remaining part of the document despite the 21st Amendment, which repealed it.

But it also preserves provisions in the original text relating to slavery — such as the clauses in Article I that count “free Persons” and “three fifths of all other Persons” for purposes of representation and taxation — despite post-Civil War amendments prohibiting slavery and nullifying its effects. Some states have removed such language from their constitutions entirely.

And the appended form of the 16th Amendment, which established a federal income tax upon ratification in 1913, is substantively different than what an integrated amendment likely would have been, says Zelenak, a tax scholar. Instead, it failed to strike out the direct tax clause, potentially constraining Congress’s power to impose a federal wealth tax or to classify unrealized gains as taxable income.

“Depending on one’s tax policy preferences, the post-Sixteenth Amendment survival of the direct tax clauses has either senselessly limited Congress’s tax policy options or served as an important restraint on the taxing appetite of a legislative Leviathan,” Zelenak said.

The professors point out that James Madison, the “father of the Constitution,” foresaw such difficulties and, during 1789 debates over placement of the first ten amendments that comprise the Bill of Rights, he argued that incorporating them into the Constitution would result in a simpler, clearer, and more uniform constitutional text.

“[W]hen the amendments are interwoven into those parts to which they naturally belong .... we shall then be able to determine its meaning without references or comparison; whereas, if they are supplementary ... it will be difficult to ascertain to what parts of the instrument the amendments particularly refer,” Madison said.

Roger Sherman, however, felt the amendments were superfluous and detracted from the elegance of the original document, Blocher and Zelenak recount. That view prevailed, and the Bill of Rights was ratified in the appended form known to most Americans. Although Madison naturally considered the substance of the Bill of Rights more important than its form, he presciently observed that in this matter, “form is of some consequence.”

More than 30 years have passed since the ratification of the 27th — and last — amendment. Blocher and Zelenak agree it’s unlikely the 27 amendments will ever be integrated into the original Constitution.

But they suggest a hybrid approach to drafting future amendments that combines both Madison’s integrated form and Sherman’s appendix. New amendments would be placed along with the current ones but would consist of “redline” instructions for revising the text of the original Constitution.

“This would achieve the substance of an integrated amendment, thus avoiding interpretive difficulties,” Blocher and Zelenak write, “while preserving both the familiar form of appended amendment and the visibility of the Constitution’s historical text.”