In 2005, the Consensus Clause amendment to the Honor Committee’s constitution narrowly failed to pass ratification by the student body, garnering 59.5 percent of the popular vote. This result even beat out last year’s multi-sanction vote of 58.9 percent. The Consensus Clause would have required a majority of the entire student body to vote in favor of the constitutional changes affecting sanctioning. This would have effectively set the single sanction in stone, as the largest voter turnout in recent history failed to even reach 41 percent (because not all authors uniformly support the single sanction, we will not comment on the merits of the Consensus Clause).
Why does a failed amendment in 2005 matter in 2017? The so-called “Empowered 55” has been billed as a means to a multi-sanction end, but if it had been the status quo in 2005, multi-sanction would be a practical impossibility. As such, this tangibly demonstrates the dangerous and misguided nature of this amendment. The primary purpose of designating a document a “constitution” is so that it may serve as “a superior, paramount law, unchangeable by ordinary means,” and this amendment threatens to render Honor’s constitution’s designation obsolete. From the viewpoint of constitutional construction, a constitution is meant to preserve a small subset of fundamental rights and principles above other mere laws. While some constitutional scholars recognize the inherent tension between countermajoritarian constitutionalism and populist democracy, a balance must be struck to avoid “frequent reference[s] of constitutional questions to the decision of the whole society” driven by populist passion over reason and understanding.
While five percent may seem like a minimal change at first, it is a definitive step towards delegitimizing Honor. It makes it easier to disenfranchise the minority in the face of a smaller majority separated by a large swath of the indifferent. Our concept of democracy must encompass more than merely the voices of the many. It must also recognize and protect ideological minorities in decision-making. The sponsors cite “egalitarian[ism]” as a value and “injustice” as something to eschew, but isn’t it true that this amendment allows a smaller majority to impose their will? The validity of amendment procedures rests on such minority protections and constitutional constancy. These procedures are the key to changing every other aspect of a Constitution, determining “peaceful continuity [versus] suffer[ing] alternations of stagnation, retrogression and revolution.” The principle of loss aversion also guarantees that such a reduction will never be taken back and will only move further down. The small majority should not be able to use this amendment as a “convenient response to [a] hot political problem.”
In addition to stripping minority protections, “Empowered 55” will lead to destabilization. Inviting continual change to a constitution raises grave issues of notice (both legal and conceptual) and reliance, eroding the function and value of Honor. Focusing on amendments, what is to stop future student bodies from resetting the minimum to a simple majority? A plurality? Removing the “10 percent of all students” threshold? Every decision students make in reliance on a document that will become the “so-called Constitution” will be in question. Why would anyone trust the current consequences in the face of unending change? This does not result in a “health[y] and … robust” system. It erodes it away to nothing more than “cavalier language.”
Using the current supermajority to moderately entrench formal amendment procedures does not immunize Honor from change. The data do not support this contention. Out of the eight referenda proposed since 2010, six have been ratified by the student body (2010, 2011, 2013, two in 2015 and 2016). The argument that one or more of these amendments were not controversial does nothing to delegitimize their passage. On the contrary, if an amendment were not controversial, would we not be more comfortable with less representation? If an amendment were controversial, would we not want more input? Because controversy indicates a large divide in opinion, would we not want more opinions going into the final decision? To do the opposite as “Empowered 55” aims is shortsighted and irresponsible.
Even procedural rules of formally ratifying amendments enshrine constitutional values. A vote for “Empowered 55” signals that we no longer value the governance of our system. A vote for “Empowered 55” signals that we no longer value Honor.
Austin Sim, Maggie Rowe, Owen Gallogly, Lindsay Fisher, Thomas Howard, Humza Salim and James Billard are all students at the Law School.