Bluefield Daily Telegraph, Bluefield, WV

Slate

September 18, 2012

Slate: What's next for the U.S. Constitution?

(Continued)

But is it realistic to think that current entrenched interests would ever allow sweeping amendments to prevail? For example, why would Wyoming ever agree to change the way the states are represented in the Senate, given how the current regime favors states with small populations? Or why would our representatives in Congress ever support an amendment to limit their own terms? The key answer is a long time-delay between the vote on a visionary amendment and its start date — the sunrise rule.

A close look at the original Constitution reveals a few clever uses of this device. Although the Deep South refused to give up the power to import trans-Atlantic slaves for the first 20 years, the region was willing to allow Congress to ban importations beginning in 1808, and forevermore. Had the framers been equally clever in the use of sunrise rules on other slavery-related issues — for example, had the original Constitution prohibited slavery in all western territory after 1808, or prohibited three-fifths apportionment credit for all slaves after 1808 — perhaps Americans might have ultimately ended slavery without the unspeakable carnage of the Civil War. States in the founding era, including Pennsylvania, Connecticut and New Jersey, did use sunrise rules to achieve gradual abolition. Slaves at the time were not liberated, but their children walked free.

In the same spirit, amendment-minded Americans should imagine ourselves today as representatives of 22nd-century posterity, tasked with the awesome challenge of framing just rules for that society even though we won't be here to see it. As modern American constitutionalists focus obsessively on the deeds and words of 225 years ago, shouldn't we spend at least some time thinking about what we want two centuries into the future? Much of American constitutional law remains to be written.

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Amar is a law and political science professor at Yale and the author of "America's Constitution: A Biography."

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