Why are conservatives, not liberals, fixated on amending the Constitution?

On January 22, the first anniversary of the Supreme Court’s Citizens United decision, I attended a summit called We the Corporations v. We the People, sponsored by the Coffee Party, a network of liberals, leftists and progressives. The summit was designed to rally support for a constitutional amendment to overturn Citizens United by declaring that corporations are not entitled to the constitutional protections of natural persons. But the attendance was sparse, the energy subdued, and the keynote speaker, Harvard Law professor Lawrence Lessig, urged the activists in attendance to scale back their ambitions and forego the push for a constitutional amendment, which he warned would not solve the problem of corporate corruption.

Things could hardly be more different on the right, of course. Conservatives are currently pushing a slew of constitutional amendments, ranging from proposals to repeal the federal income tax to proposals to allow two-thirds of the states to repeal any federal law or regulation. And these amendments are receiving full-throated support from party activists and members of Congress alike. This pattern has held for decades—recall the flag-burning amendment of the 1990s and the recent push to win a constitutional ban on gay marriage—and it raises a question: Why is it that these days only conservatives, and not liberals, seem to get excited about amending the Constitution?

The answer, in a word, is populism. Enthusiasm about constitutional amendments generally tracks closely with populist sentiment. Simply put, populist movements tend to expend energy on constitutional amendments; those that are more elite-driven do not.

Conservatives didn’t always dominate the market in constitutional amendments. During the last wave of progressive constitutionalism, at the beginning of the twentieth century, Harvard Law graduates like Louis Brandeis and muckraking journalists like Ida Tarbell helped mobilize grassroots support for trust busting and anti-monopoly laws by vilifying reckless bankers and oligarchs like J.P. Morgan and J.D. Rockefeller who took risks with “other people’s money.” At the same time, progressives pursued similar anti-corporate goals by successfully championing constitutional amendments that authorized a federal income tax and the direct election of senators.

But, as Alan Brinkley has argued, liberalism began to move away from this populist spirit in the middle of the New Deal, and, in the process, largely abandoned its interest in amending the constitution. The last real effort at constitutional change by the left—the Equal Rights Amendment—sputtered after liberals decided to focus not on building grassroots support but on persuading the Supreme Court to mandate gender equality. When the Court did so in a plurality opinion in 1973, it took the wind out of the sails of the political effort to ratify the ERA in the states. As Jane Mansbridge argues in Why We Lost the ERA, the Court’s premature intervention helped to ensure that the amendment was never ratified.