The Courts Took Over When We Stopped Amending the Constitution

The last time the American people amended the Constitution to address a major structural question, it was 1971. The 26th Amendment lowered the voting age to 18, driven by the unanswerable logic that a man old enough to be drafted and die in Vietnam ought to have a say in the government that sent him. It swept through Congress and the states in just 100 days, the fastest ratification in history, because the country recognized a clear principle and acted on it. Since that day, the federal government has exploded in size and reach. The administrative state has become a permanent fourth branch. The Supreme Court has redefined healthcare, marriage, the limits of federal power, and the relationship between the citizen and the state. And not one of those changes came through an amendment. We did not change the Constitution. We simply watched as judges and bureaucrats pretended it said things it plainly does not. That is a constitutional emergency disguised as business as usual. Unless we recover the one tool the Framers gave us to lawfully adapt our republic - the amendment power of Article V - we will continue to slide from a government of laws into a government of men.

The Safety Valve the Founders Actually Designed

The men who drafted the Constitution were not dreamers. They possessed what Thomas Sowell calls the constrained vision - an understanding that human nature is flawed, power corrupts, and no document can foresee every future circumstance. So they built in a safety valve. In Federalist 43, James Madison described the amendment clause as a "gubernative provision" against "useful alterations suggested by experience." The idea was straightforward: if the people, acting through their states, overwhelmingly agree that the federal government needs a new power, they may grant it. If they do not, the government stays within its enumerated limits. The bar was set deliberately high. An amendment requires two-thirds of both houses of Congress to propose it, followed by ratification from three-quarters of the state legislatures. That is not a bare majority. That is not a 5-4 Supreme Court ruling. It is a genuine national consensus, the kind that forces the country to debate, deliberate, and own the change. The process ensures that the fundamental law of the land cannot be rewritten by a transient faction or a handful of unaccountable judges.

For most of American history, we used the amendment process exactly as designed. The Bill of Rights was ratified immediately after the original Constitution. The 13th Amendment abolished slavery. The 19th extended the vote to women. The 16th allowed an income tax, and the 17th provided for direct election of senators. Each of these fundamentally reshaped the federal compact, and each went through the Article V gauntlet. The people spoke, and the text changed. Then, in the 20th century, something shifted. A movement arose that found the amendment process too slow, too uncertain, too democratic. Instead of convincing supermajorities of their fellow citizens, they set their sights on convincing five justices.

The Quiet Coup: How the Progressive Era Abandoned Amendments

The turn began roughly a century ago, and it was not subtle. Progressive reformers wanted a vastly enlarged federal government - one capable of economic planning, income redistribution, and social engineering. The Constitution as written forbade most of those things. So they tried the amendment route first. The 16th and 17th Amendments succeeded. But the broader ambition stalled. Consider the Child Labor Amendment. Congress proposed it in 1924 after the Supreme Court twice struck down federal child-labor laws as exceeding Congress's power under the Commerce Clause. The amendment would have given Congress authority to "limit, regulate, and prohibit the labor of persons under eighteen years of age." The states balked. By 1937, only 28 had ratified, far short of the required 36. The American people, through their elected representatives, said no. That should have settled the matter. Instead, the Progressives changed their approach. They abandoned the amendment process and launched a long campaign to capture the courts.

The pivotal moment came during the New Deal. The Supreme Court initially struck down several key pieces of Franklin Roosevelt's agenda. Roosevelt retaliated with his infamous court-packing plan in 1937. He lost that legislative battle but won the larger war. Justice Owen Roberts's "switch in time that saved nine" flipped a crucial vote, and the Court suddenly discovered new federal powers hidden in the Commerce Clause. The decisive case arrived a few years later. In Wickard v. Filburn (1942), the Court considered a farmer in Ohio who grew wheat to feed his own livestock - wheat that never left his farm, never entered any market. The Court ruled that his private act of feeding his own animals could be regulated by Congress because it "substantially affected" interstate commerce when considered in the aggregate. That reasoning effectively ended limits on federal power. From that moment forward, there was nothing Congress could not regulate. No amendment was needed. The Court had simply read an unlimited police power into a clause originally designed to prevent trade wars among the states.

Woodrow Wilson, the first progressive president, had been candid about the goal decades earlier. He rejected the Constitution as a machine that must be "adjusted" by living interpreters. He called the separation of powers a hindrance to efficient government and pined for a system that blurred the lines. That philosophy - the "living constitution" - became the reigning theory of American law for the next century. Under it, the amendment process is an antique. Why fight 38 state legislatures when five justices can deliver the desired outcome?

The Knowledge Problem on the Bench

This is not merely a procedural complaint. It goes to the heart of sound judgment and the limits of human knowledge. Friedrich Hayek demonstrated that no central planner, however brilliant, can gather the dispersed information held by millions of free people making their own decisions. The same is true of judges. Nine lawyers sitting in Washington cannot possibly know enough about the tradeoffs of healthcare markets, education policy, or local land use to rewrite the rules for an entire continent. The amendment process, by forcing any proposal to run a 50-state gauntlet of debate and deliberation, taps into that dispersed knowledge. It filters out foolish ideas and allows compromises that reflect the lived experience of everyday citizens across varied circumstances.

When courts legislate from the bench, they bypass all of that. They impose a single top-down rule, blind to the unseen consequences. Henry Hazlitt's "one lesson" of economics applies here: the visible benefit of a desired policy is celebrated, but the invisible costs - the erosion of democratic accountability, the concentration of power, the citizen's sense that his voice no longer matters - accumulate silently. The administrative state is the logical endpoint of this judicial hubris. Today, unelected agencies write regulations with the force of law, enforce those regulations, and even adjudicate disputes in their own tribunals. This combination of functions in one body would have appalled Madison and the Founders. The Environmental Protection Agency, the Department of Education, the sprawling alphabet of federal boards - none of them appear anywhere in the Constitution. They exist only because the courts permitted Congress to delegate its legislative power, a practice the nondelegation doctrine was supposed to forbid.

Thomas Jefferson saw the danger with prophetic clarity. In an 1819 letter to Judge Spencer Roane, he warned that the Constitution was "a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please." Over the last half-century, we have watched judges invent a right to abortion out of "penumbras" of other rights, redefine marriage for the entire country on a bare majority, and reshape the Fourth Amendment to permit surveillance that the Founders would have called a general warrant. Whatever one thinks of the outcomes, this is not republican government. It is rule by lawyers, exercising judgment that the Constitution never granted them and substituting their will for the considered consensus of the governed.

The Solution We Fear: An Article V Convention

The remedy is written into the very document we have been ignoring. Article V provides a second path for proposing amendments, one that does not rely on Congress at all. If two-thirds of the states - 34 today - demand it, a convention of states must be called to propose amendments. Any proposal emerging from that convention would still require ratification by 38 states, a supermajority even higher than the one that ratified the existing Constitution. This is not a path to a runaway convention. The ratification requirement is an iron lock. The real danger is not that a convention would change too much; it is that we have already allowed a permanent convention of judges and bureaucrats to rewrite the rules without any ratification at all.

A convention of states offers the only realistic tool for structural reforms that Congress will never impose on itself. A balanced budget amendment. Term limits for federal judges and members of Congress. A restoration of the Commerce Clause to its original scope. A clear statement that legislative power may not be handed off to unaccountable agencies. These are not radical ideas. They are correctives designed to restore the constitutional architecture that has been eroded by a century of judicial activism. And the debate over them would be public, transparent, and fiercely democratic - exactly the kind of deliberation the Founders trusted to safeguard liberty.

Antonin Scalia, the great originalist justice, understood what was at stake. He insisted that the Constitution is "not a living organism. It's a legal document." Its meaning is fixed by its text and the understanding of those who ratified it. If the people want to change that meaning, they may do so through the amendment process. What they may not do is hand the power of change to judges who then declare that the document now means whatever they think it should. Scalia's intellectual heir, Justice Clarence Thomas, has repeatedly called for a return to first principles, including a willingness to revisit doctrines like substantive due process and the administrative state that were built on judicial overreach. They point the way forward, but it is a path that requires the people to act.

The progressive movement of the early 20th century failed to amend the Constitution directly because they could not muster the public support. So they bypassed the people and captured the institutions. We are living with the consequences: a government that exercises powers never delegated to it, accountable to no one in particular, sustained by a legal class that profits from the confusion. The way back to a republic of laws is to reawaken the amendment power. Not as a gimmick, not as a partisan weapon, but as the ordinary, healthy mechanism for adjusting our fundamental law that Madison intended. We must pull the emergency brake, reengage the states, and reclaim the principle that the government serves at our pleasure, not the other way around. The Constitution is a charter of enumerated powers. If we want it to mean something new, we must do the hard work of persuading our fellow citizens and amending the text. The alternative is to admit that we have given up on self-government entirely.