In a recent post Mark Pulliam has nicely observed that the amendment process itself makes the Constitution a living document, capable of responding to new circumstances. But defenders of living constitutionalism as an interpretive theory do have a response to this position. They have argued that the amendment process is just too stringent and must be supplemented by judicial updating. Mike Rappaport and I have provided two interrelated arguments about why these theorists are wrong, thus bolstering Mark’s position.
First, the amendment process does not seem too hard, if we look at the six amendments that came closest to becoming law—those that obtained passage in Congress by 2/3 majorities but foundered in the state ratification process. Most of these amendments were not good ones and the most consequential would have made slavery legal and even entrenched that position against subsequent constitutional amendment.
It is true that most people today would favor the amendment banning child labor which passed Congress, but did not succeed at the ratification stage. But we argue that the amendment ultimately failed because Franklin Roosevelt decided not to push it: the amendment was too narrow an expansion of federal power for his purposes of centralized economic control.
Recently, I did a podcast interview on Constitutional Amendments and the Presidential Election. The interview, which was conducted by the National Constitutional Center, also featured David Strauss of the University of Chicago. Jeff Rosen, the President of the National Constitution Center and a Professor at George Washington Law School, was the interviewer.
It was an interesting discussion, which focused both on the constitutional amendment process and the impact that Hillary Clinton and Donald Trump might have on constitutional change if they were elected.
It was fun discussing these issues with David Strauss, because his views are so diametrically the opposite of mine. Many nonoriginalists resist being described as living constitutionalists. Strauss embraces it. He takes the opposite position of mine on a whole range of specific issues, which follows from his more general approach.
Strauss believes two main things about constitutional change. First, he claims that the actual practice of constitutional change occurs through judicial decisions and other governmental actions. In fact, he believes that constitutional amendments are largely irrelevant. Second, he believes that constitutional amendments are not generally a good way generally of changing the Constitution. The way that is actually practiced – where judges follow a common law like system – is better.
Yesterday was the 82nd anniversary of the Twenty First Amendment, repealing Prohibition, which had been imposed by the Eighteenth Amendment just fourteen years earlier. Repeal was a happy day, not only for those who drink alcohol but also for the many people saved from a culture of violence that the illegal business of evading Prohibition generated.
Beyond its good social consequences, the repeal of Prohibition has implications for constitutional theory. Many critics of our Constitution contend that the amendment process, which requires two thirds of Congress and three quarters of the states for enactment, is too strict. Moreover, critics claim that its excessive stringency has become even clearer as more states have joined the union. This argument is often used to support the claim that originalism needs to be discarded, since we need judges to update a Constitution whose amendment process is inadequate.
But Prohibition and its repeal provide a riposte to that claim. As Mike Rappaport and I argue in Originalism and the Good Constitution, the rapid consensus that the Eighteenth Amendment was a mistake supports our position that the amendment process is not too strict. As stringent as Article V is, it still permitted enactment of a provision that was quickly admitted to be a costly failure, illustrating the dangers of a less stringent amendment process. And at the time there were forty-eight states in the union—just two fewer than we have today.
More generally, as we note in our book, reviewing the history of proposed constitutional amendments also casts doubt on the argument that Article V is too stringent.
Hillary Clinton is the odds on favorite to be the next President of the United States. From a reporter this weekend, I learned that her possible victory has offered an occasion for Dean Erwin Chemerinsky to argue that the original meaning of the Constitution would prevent her from being President. His primary contention is that women are excluded form the highest office because the original Constitution refers in many places to the President as “he.” Of course, Dean Chemerinsky does not believe that the Constitution correctly interpreted actually prevents Clinton from becoming President nor is he predicting that any court will so hold. He just wants to score points against originalism.
But his argument shows that he understands little about originalism and seemingly less about the plain text of the Constitution. First, the language of the Constitution has to be interpreted against the linguistic convention that existed at that time (and indeed despite its political incorrectness may exist even now) that the masculine reference can include females. Lest there be any doubt that this was a convention at the Framing, one just has to consult the King James Bible, surely the book best known in the United States in 1789.
Charles Cooke has called for a constitutional amendment to overrule Kelo v. City of London. In Kelo a narrow majority of the Supreme Court read the public use requirement out of the Fifth Amendment’s Taking Clause and allowed the amendment to become a tool of private developers to take property from the politically less powerful. Cooke makes the excellent point that this amendment may unite many conservatives and liberals, because the Kelo decision aided special interests at the expense of the property rights of ordinary citizens.
Passing a constitutional amendment would be good for the republic even beyond the benefit of overturning Kelo and the more expressive one of trumpeting the importance of property rights. Deliberating on and enacting constitutional amendments is good for our constitutional culture.
First, it would rebut the facile and false claim that our constitutional amendment process is so hard that no significant amendments can be passed—a claim often made to justify non-originalism. In fact, the nation passed the transformative sixteenth and seventeenth amendments when there were almost as many states as there are today. In 1971 the twenty-sixth amendment reducing the age requirement for voting to eighteen took less than four months to ratify—the shortest time in the nation’s history.
Second, moving amendments to the front and center of debates would improve our politics.
Bruce Ackerman of Yale Law School is one our most renowned constitutional law professors. His most famous theory is that of constitutional moments–one of the many alternatives to originalism offered in the academy. As a positive matter, a constitutional moment is period of heightened concern and deliberation about the Constitution. Controversially, as a normative matter a constitutional moment can change the Constitution without going through Article V. Here is a simplified synopsis of that theory: One political party proposes enactments of statutes that are not permitted by the Constitution as interpreted at the time, the people send this party to power, the party puts their program into effect and the opposition party acquiesces in the program when it comes to power. For instance, through his theory of constitutional moments Professor Ackerman has justified the transformation of the federal government’s enumerated powers that happened during the New Deal.
Despite my admiration and enjoyment of America’s Unwritten Constitution, I have some disagreements as well. Professor Amar is absolutely correct to reject a wooden textualism, but one of his interpretive moves strikes at the formality that comes from interpreting the language of the Constitution as fixed when it was enacted. In particular, I worry about the “lived Constitution.” Here Professor Amar discovers a mode of constitutional interpretation which discovers unenumerated rights in the practices and beliefs Americans live by. An example would be the emergence of a right to contraception.
To be sure, the Constitution’s structure permits a lot of room for the development for social norms. Federalism for instance permits a forum of experimentation. New social norms change law through the process of passing ordinary legislation. No state bans contraception now and none now would do so, regardless of whether the Court had declared it a constitutional right.
But I fail to see why norms should become part of the Constitution even if they enjoy substantial support. First, that support does not necessarily represent a consensus about making the norm a constitutional right. It is simply different to accept a norm as a good thing now as opposed to entrenching it for the future in the federal constitution. We may need time for second thoughts or believe that the costs of entrenchment outweigh the benefits given future uncertainty.