Michael Greve on Nonoriginalism, the Constitutional Amendment Process, and Lost Amendments

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.

Let me begin by elaborating on the view that I have articulated in scholarly articles with John McGinnis.   We argue that there have been many Lost Amendments – amendments that might have passed except for the Supreme Court’s nonoriginalism.  First, had the New Deal Supreme Court followed the original meaning and not reinterpreted the Commerce Power, an amendment would probably have passed expanding the federal government’s power to regulate economic matters.  Second, if that amendment did not allow regulation of interstate pollution and if the Supreme Court had held that the federal government lacked the power to legislate as to such pollution, the nation would have been likely to pass an amendment authorizing such legislation during the Environmental Decade of the 1970s.  Finally, if the Supreme Court had not updated the Constitution and held that the Equal Protection Clause protected women (and had the Supreme Court not consistently followed a nonoriginalist practice making people distrust it would faithfully follow the proposed Equal Rights Amendment), an equal rights amendment would have probably passed in the 1970s or 1980s.  In each case, though, nonoriginalism was the chief obstacle to passage of an amendment.

Michael views the matter differently, but I think he is addressing an argument I didn’t make.  First, he views my argument as claiming that the most “aggressive non-originalist escapades” prevented constitutional amendments.  But that is not my argument.  Instead, it is that those amendments of the Constitution’s original meaning that could have passed were prevented by nonoriginalist decisions.

Michael also unduly minimizes the effect of the New Deal Court’s nonoriginalism.  That Court’s nonoriginalist expansion of federal power prevented not just the passage of a child labor amendment.  The proposed amendments that would have been likely to pass (had the Court followed originalism) would have authorized federal legislation that regulated the economy.  That would have been a big deal and would have avoided the Supreme Court’s evisceration of the enumerated powers.

Michael is certainly right to suggest that, had Roe v. Wade not been decided, no constitutional amendment would have been enacted protecting the right to an abortion.  Thus, I don’t make an argument here in favor of Roe.  The nonoriginalism of Roe did not undermine the constitutional amendment process.  It usurped it.

I stress these points because many people, who are sympathetic to originalism, believe that the strictness of the amendment process is a serious problem.  But as I have argued, the problem is not so much the strictness as the nonoriginalism that undermines it.

The main problem with the constitutional amendment process lies elsewhere.  As I said in my previous post, the main problem is that the only workable amendment process gives Congress a monopoly on proposing amendments and therefore no amendments that Congress does not like have a chance of being enacted.  If the alternative to the congressional proposal method of constitutional amendment — the national convention process — was not broken, then we might now have amendments that established terms limits, a line item veto, or restrictions on unbalanced budgets.