As Michael Greve noted earlier, the two of us participated in a Federalist Society Teleforum on his new book, The Upside Down Constitution. The podcast based on the teleforum should be up in the near future. But in the meantime, I thought I would do a couple of posts based on my remarks. Michael’s book is an extremely interesting one that is a pleasure to read. But what stands out most about the book is its distinctive approach. Virtually no one among legal academics has the same approach as Michael. As a result, I probably learned as much from this book…
I have enjoyed reading the various responses to Sandy Levinson’s essay. My co-blogger, Michael Greve, penned a characteristically entertaining and insightful post. Consider the following example from the post of his powerful writing: “The overdemocratization of Congress means that “Democratic institutions, operating under those conditions, can produce universalist legislation (earmarks and transportation bills); demagogic “emergency” measures (Dodd-Frank); or brutal cramdowns (ObamaCare). They can’t produce anything else.”
Unfortunately, Michael disagrees with me on a point that I regard as really quite important: that nonoriginalism has sabotaged the amendment process. He writes:
On this account, I disagree (reluctantly but firmly) with brother Rappaport’s observation that the Supreme Court’s “Living Constitution” has impeded the use of the amendment process. The Court’s most aggressively non-originalist escapades all arise over rights and social causes (nowadays, mostly having to do with sex). The New Deal’s victory and the post-New Deal Congress and Court took the oomph out of a long-running, nearly successful effort to constitutionalize a prohibition against child labor: should that be in the Constitution, along with an exemption (in force to this day) for family farms? Should we constitutionalize contraceptives? Abortion? I doubt that those sorts of decisions forestalled a push for amendments; but if that is the case, it’s the first vaguely plausible pro-Roe v. Wade argument that I’ve yet heard.
Let me explain why I disagree.