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Constitutional Amendment as a Path to Avoiding Robed Masters

Tocqueville considers the institution of judicial review in light of the mutability of constitutions in France, England, and the United States. He considers matters in the countries as they stood in the 1830s. France and England represent the extremes. On the one hand, the French constitution cannot be changed. It “is, or is supposed to be, immutable. No power can change anything in it; such is the received theory.” Judicial review, specifically, the power of judges to declare laws unconstitutional, does not make sense under the French theory of constitution, according to Tocqueville, because with an unchangeable constitution, judges would be the true rulers of France. Better to deny judges the power of judicial review and have a system of legislative supremacy. At least then, Tocqueville writes, effective power to change the constitution would be in the hand of the people’s representatives rather than in the hands of judges “who represent only themselves.”

England stands at the other extreme of constitutional mutability. Here, too, judicial review makes no sense according to Tocqueville, “since the Parliament, which makes the laws, also makes the constitution.” Because Parliament makes both ordinary law and constitutional law, there is no effective constitutional basis for judges to draw on to declare ordinary parliamentary enactments unconstitutional.

In the United States, however, while the Constitution stands over the legislature, and therefore judges apply a higher law than ordinary legislation when reviewing legislation, the Constitution is also mutable. This is critical for Tocqueville. If Americans do not like the way judges interpret the Constitution, they can always “reduce the judges to obedience” by changing the Constitution. This possibility prevents judges from being the equivalent of rulers.

For Tocqueville, as for the Constitution’s framers, constitutions need to sit somewhere between being completely immutable and entirely mutable. Without pinpointing the American case as a precisely optimal balance between the two extremes, Tocqueville nonetheless identifies the American mix of judicial review and constitutionalism, to echo the fairy tale, as being just right.

But Tocqueville visited the U.S. in 1831, and first published Democracy in America in 1835. If given a longer time horizon, would he still suggest that Americans hold the power to “reduce judges to obedience” because the people have the power to amend the Constitution?

With a nod to the exceptionalism of the period that generated the Bill of Rights, it is nonetheless true that when Tocqueville visited the U.S., the national constitution had already been amended twelve times. That is twelve times within 30 years. If the Constitution continued to be amended at the rate, today it would have over 90 amendments to it rather than 27. Even if we cut this rate of constitutional amendment in half, the U.S. Constitution would still have been amended in the neighborhood of 45 times by today.

Stepping around the question of what the content of those additional amendments might be, the issue is one of balancing stability with mutability — that is, balancing constitutional viscosity with constitutional fluidity.

Achieving the right mix, however, does not merely reflect an aesthetic of balance just right. Bigger issues hang on whether the current Constitution is too hard to amend to continue to meet Tocqueville’s celebration of the American balance of constitutional viscosity with its fluidity.

First is the issue of republicanism itself. When the people themselves ratify a constitution, the constitution necessarily controls the people’s delegates in the legislature, executive, and even in the judiciary. To create the possibility that constitutional amendments might discipline the judiciary, there needs to be a credible threat of adopting them in reaction to judicial decisions. The two times The Federalist cites the Declaration of Independence, both respond to arguments that would make the possibility of altering government too difficult. While the threshold needed to amend the current Constitution is lower than it was to amend the Articles of Confederation, it’s a fair question whether, after over two centuries of experience, the evidence suggests the threshold remains so high as effectively to prevent realization of the “consent of the governed.” Needless to say, the disciplinary threat of constitutional amendment does not affect judicial behavior today at the national level.

Secondly, however, there is the question of whether the difficulty of the amendment process has corrupted constitutional processes more generally. There is, first, the effective absence of the deterrent value of constitutional amendments as a means to “reduce judges to obedience.”

Relatedly, however, is the effect on judicial discourse itself, and on discourse about the judiciary. As I’ve argued in earlier posts, honest reading is one of the most important merits of textualism. If a constitution is too difficult to amend, even in the face of persistent, significant majority sentiment, citizens and policymakers will cast about for alternative mechanisms of constitutional change. Creative constitutional construction — I won’t dignify the phenomenon by calling it constitutional interpretation — results in part from enormous political pressure seeking constitutional change that cannot be realized through the amendment process. So, too, the politicization of the appointment process for judges.

If, as Tocqueville would have it, judges are a country’s rulers, as they would be in his analysis if a constitution makes constitutional change by the people too difficult, then the appointment of judges become, in effect, the appointment of our rulers. To the extent this is the case, then the process should be fully political and fully politicized. Indeed, republicanism requires it.

To be sure, I’d anticipate the country would adopt some amendments that I would oppose. And I would support some amendments that many others would oppose. But republican processes do not require unanimity. While constitutional change should be more viscous than the process of ordinary policy change, I think it an open question whether, with over two centuries of experience behind us, the evidence indicates that while improving on the process relative to the Articles of Confederation, the current Constitution continued to err too much on the side of making constitutional change too difficult. And some of our most telling constitutional vices derive from that problem.

Reader Discussion

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on April 24, 2018 at 11:54:03 am

Ah, to continue in this path of absurdity. Ok, I'll play along. To my knowledge, Prof. Rogers, there is not a judge seated that requires a Constitutional Amendment to, “reduce...to obedience” - its called "Impeachment" - I know you have heard of this too little used mechanism to "reduce" judges to the unemployment line.

Otherwise, I invite you to consult Article III, Section 1 of the Constitution, to two particular statements: "in such inferior courts as the Congress may from time to time ordain and establish" & "The judges, both of the supreme and inferior courts, shall hold their offices during good behavior".

I, personally, am very suspect of anyone who has designs for making it easier to amend the Constitution, shall we hold our breath for the fourth installment, where you might reveal your grand scheme to improve the Constitution into your idea of a more perfect union? A European Union, perhaps?

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Paul Binotto
on April 24, 2018 at 12:43:09 pm

Art III, sect 2:

"In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make."

Not just impeachment, which is difficult, but also the power of congress to determine "jurisdiction" of, and for, the Black Robes.

Oops, I forgot, in Hamdan v Rumsfeld, the Black Robes decided to *amend* Art III, sect 2, to add, "except where the Supreme court says otherwise.

On a more serious note, I do not take Prof Roger's current essay to be a call for either an EU constitutional regime, nor for a call for an *immutable* constitution. Rather, I suspect that Rogers is simply detailing the unintended consequences of a specific constitutional choice arrived at by the Framers and predicated upon a long history of English jurisprudence / practice in which the innumerable British jurists stood stalwart against the encroachments by the Crown upon the *unwritten* British constitution. Given the difficulty of amending COTUS, an opportunity arises for the Black Robes to implement what they perceive to be the "new" consensus amongst the citizenry in certain areas of policy, philosophy and / or practice. Consider only the wording of a SCOTUS decision on capital punishment a number of years ago wherein the Robes stated that "capital punishment" no longer had the support of a majority of the citizenry / States. Factually, this was incorrect; No matter, the Robes "divined" that it was TO BE correct and decided accordingly.

Here, we see the Robes confusing the "policy guiding" powers of Constitutional text for thge actual implementation of policy. Constitutional text MAY, and in fact is intended to provide some general guide as to the legislation ultimately passed by the Legislative Branch BUT it is NOT policy (in the strictest sense). Black Robes, *sensing* some level of "unquietude" (see Tocqueville) amongst the citizenry, may feel impelled to DIVINE new meaning, and new SPECIFIC policy implications within (or, more likely, without) the constitutional text and will accomodate their reasoning to the newly perceived meaning for policy. In a nutshell, that is what judicial activism amounts to. Rogers identifies some of the factors that allow for this judicial phenomenon.

If the people (so it is alleged) are clamoring for certain policy prescriptions to be implemented, and the text of COTUS seemingly disallows this, then a more *creative* constitutional construction is, in the minds of the Black Robes, mandated.

Make it easier to amend COTUS and, it is argued, the opportunities for Judicial enhancement of Art III powers is diminished. That seems like a reasonable assertion.

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gabe
on April 24, 2018 at 13:17:37 pm

A reasonable assertion and realistically dangerous one where fewer and fewer citizens have a certain and enduring commitment to even the most basic tenets of free speech, freedom of rereligion etc.. Nope don't mess with what aint broken when other means are available.

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Paul Binotto
on April 24, 2018 at 13:41:37 pm

Perhaps, I should have said "That is NOT an UN reasonable assertion"

I made no claim as to the propriety of such an action; ultimately, it is unclear to me IF Rogers is making any such claim as to propriety either. It seems as if rogers is simply make some dispassionate observations.

Given the incredible ignorance of constitutional history, etc amongst the populace, one may very well be concerned with WHAT amendments would be initiated and approved.

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gabe
on April 24, 2018 at 13:56:17 pm

Mr. Gabe, I am, of course, wrong to cast aspersions on Prof. Rogers motives. I am quite certain he is an honorable man, and his motives and ideas likewise honorable, and considered. I just get so nervous and suspicious at talk of changing or rather, making it easier to change, what the Framers so brilliantly erected in our Constitution, especially during times of unrest and disunity (as now) when irrationality leads to rashness; a slow and tedious process gives a nation much needed time to reflect on the implications of what's to gain and what's to lose.

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Paul Binotto
on April 24, 2018 at 14:06:01 pm

Oh, and let me add one more instance where the Black Robes have decided to ignore a specific limitation on their jurisdiction imposed by the Congress under Art III, sect 2:

Trump v Hawaii wherein the Robes have not only deigned to weigh in on immigration policy BUT has decided to rule on the rights of UNADMITTED ALIENS to the US in spite of SPECIFIC Congressional limitations on such jurisdiction.
Not only the Congress has enacted such limitations but SCOTUS, itself, has determined that such restrictions upon immigration are exclusively the province of the Executive (foreign relations, etc0 and the Legislative. Now comes some backwoods Blackstone conjuring up all manner of new rights for those NOT EVEN part of the polity and deploying a rather broad conception of *standing* to accomplish this arrogation of the powers of another "co-equal" branch - Yeah, right, coequal - but the Robes must perceive themselves, as did the Caesars, as First amongst Equals!!!!

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gabe
on April 24, 2018 at 14:26:49 pm

Maybe we should try to amend the Judiciary Act first. Under Art. III, the Supreme Court, and all inferior federal courts, are very much the creatures of Congress and most of our current difficulties with the judiciary reflect Congress' reluctance to set any limits on the judiciary.

When Trump is re-elected, and hopefully after the Müller investigation is complete, perhaps Trump could ask Congress to appoint a special committee to consider the Judiciary Act might be amended to correct the obvious problems associated with an unelected, unrepresentative and unchecked judiciary.

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EK
on April 24, 2018 at 15:03:46 pm

The problem is Judges making law. Like Obama care marriage for Homosexuals, grant the bureaucracy the power to write laws via regulations (F.D Roosevelt Court), the Warren Court, eta. What is need is to have an Article V convention.

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C Thomas
on April 24, 2018 at 18:10:18 pm

Nature abhors a vacuum, Mr. Gabe, no nature more so than does human nature; And, Congress has left the Judicial (and Executive) a capital sized vacuum.

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Paul Binotto
on April 25, 2018 at 12:49:50 pm

I don't really understand this reasoning. The Constitution that was put in place went to historically (both before and since) great lengths to impede the easy realization of its will by the people. Anyone who thinks a less "viscous" amendment process will produce the republican good of depriving judges of their increasingly plenary power hasn't taken a look at the EU, whose mu approaches zero and whose judges have merely removed themselves altogether from the authority of the demos. Make our Constitution more easy to amend and in 10 years or less our own vox populi will have subordinated our entire government apparatus to "international bodies" or otherwise imported the amorphous "human rights" that proliferate everywhere else on the planet and whose amorphousness increases, not confines, the authority of judges.

And EK's suggestion above is exactly the kind of political power action that the Left will not hesitate to take but that the Right today shrinks from because it would rather win a debate than exercise political power.

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QET
on April 26, 2018 at 01:41:22 am

The problem is not in the Constitutional barriers to amending the Constitution. The problem isn't even activist judges. The problem isn't even those within Congress who place ideological loyalty above the rule of law. Those are all symptoms.

The problem is the Left's intent to either fundamentally transform America into AmeriKa or, failing that... to destroy it. The American Left has become a clear and present danger to the very survival of the American Republic.

The conundrum is that the cure will almost certainly kill the patient.

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Geoffrey Britain
on April 27, 2018 at 05:32:54 am

Oh no! The gay marriage!

Equal protection. 14th Amendment.

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John Ashman
on April 27, 2018 at 09:46:45 am

You can´t just impeach judges for having a different view about the law. You have to make the law so clear that there is no doubt and no way around it.

Wickard v Filburn was one of the worst decisions in Supreme Court history, and yet it was UNANIMOUS. Do we impeach the entire Supreme Court because they are malicious socialist activists? It would be nice, but it is a little hard when their backers were in complete control of government. They were hand selected specifically to rubber stamp FDR´s agenda. And so they did.

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John Ashman
on April 27, 2018 at 10:04:03 am

Neither the Executive nor Congress has ANY authority to stop immigrants from coming to any one of the 50 US sovereign States, Gabe. Put your reading glasses back on.

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John Ashman
on April 27, 2018 at 10:21:41 am

I have a different approach I call "Amendment Baiting". Amendments are typically hard to get, but many would be quite easy.

For instance, NASA, the Air Force, National Parks are all nearly universally loved. And all quite unConstitutional. So if you proposed an Amendment, they would be ratified. The only problem? Democrats would freak out. "HOW DARE YOU!!!¨ They would attempt to block any such amendment being passed through Congress. Why? They know where it is leading. A challenge to the Federal "supremacy" of unConstitutional laws and agencies. However, if sufficiently taunted with the cries of "You are ENDANGERING these beloved programs!", they would be forced to relent.

Stage 2. Social Security. Now the freakout and resistance would be explosive. Charges of "playing games" and "putting the system at risk". And yet, the program is unConstituitonal and could be wiped out by any 5 votes on the Supreme Court in a heart beat. So you force them to make the vote. Those against are against Social Security. Can they survive their own intransigence? Maybe. Would it get ratified? Probably.

Stage 3. Now we are hitting the limits here. Dept of Ed? OSHA? DEA? ATF? ICE? Border Patrol? NSA? CIA? How many of these would pass the scrutiny of an amendment process? And if they did, with what watered down power?

I call it Amendment Baiting because it is obviously a trap. But if the trap is properly designed, the left (and sometimes the right) will have no place to go but inside the trap for their own safety.

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John Ashman
on April 27, 2018 at 11:45:36 am

Of course you don't impeach them all, as appealing as that may sound. But maybe a few very well broadcast, well positioned, and well deserved impeachments will serve as the proverbial shot-across the bow to remind, as Mr. Gabe likes to say, "the black robes" that the citizens are paying attention, and will at least rein in many of the judicial offenders.

I am not naïve about what a monumental task it would/will be to make a correction. My main point; it isn't the Constitution that is broken or deficient, but rather an abuse and perversion of it that has gotten us where we are.

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Paul Binotto
on April 27, 2018 at 12:43:59 pm

That may be true, but the ENTIRE legal profession has decided that at least 4 of the most important clauses mean something completely different. We would have to get rid of a lot of judges to change that, and somehow mandate some sort of proper legal training instead of the legal fictions and fairy tales they are taught todya.

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John Ashman
on April 27, 2018 at 13:42:40 pm

No, Congress / Executive have no power to prevent INTERNAL movement of citizens between the States but the power to admit or deny entry into the Federal entity is EXCLUSIVELY a Federal power and in the minds of the Framers was derivative of the powers inherent in the Nation State under usual and customary International Law (Law of Nations; Gee, I guess that is why they called it the law of NATIONS not the law political subdivisions) Then again, perhaps your glasses are fogged with the mist caused by the exertions consequent upon the exercise of libertarian "one-world) fantasy.

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gabe
on April 27, 2018 at 13:46:25 pm

Of course, we could follow Robespierre and proclaim: "Qu'on leur coupe la tête " (off with their heads).

It worked well for him and his boys, didn't it?

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Guttenburgs Press and Brewery
on April 27, 2018 at 14:24:41 pm

You put in print what I was thinking...but five republics later and a smatterings of Napoleonic and fascist usurpations thrown in for good measure doesn't exactly instill a lot of confidence in me for the French approach to self-government.

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Paul Binotto
on April 27, 2018 at 14:24:56 pm

Good lord, where to start. "Gee".......

1. Where does it say ANY of what you claim in the Constitution? Nowhere. See 10th Amendment.
2. I am super glad you have a time machine AND can read minds, but the Founders repeatedly stated that the proper remedy for open borders was delayed citizenship, that the Feds should neither encourage NOR DISCOURAGE immigration.
3. The DoI clearly states they viewed meddling in immigration to be an international CRIME.
4. Law of Nations is a nebulous concept AT BEST and is constrained to the interaction between governments, not between a government and individuals.
5. Libertarianism, as promoted by the Founders had nothing to do with "one world" government, but eveyrthing to do with individual rights and SELF governance.

Please do more reading.

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John Ashman
on April 27, 2018 at 14:28:34 pm

I don't know about the Libertarian one-world thing, but I agree with you Mr. Gabe; its the Feds than control admittance and entry in to the nation.

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Paul Binotto
on April 27, 2018 at 14:29:37 pm

I think the idea of impeaching judges for bad judgment will go nowhere, because Congress will protect them, they LIKE bad judgment. Trying to get amendments passed that restrict government will be far more impossible than validated powers already stolen. But, if you validate SOME powers, but not all, this makes those not validated and ratified EXTREMELY suspect to SCOTUS. The debate in Congress alone that implodes them would be epic and would create the necessary debate. IOW, we could trick Congress into trying to validate its current stolen powers, and then let it backfire on them.

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John Ashman
on April 27, 2018 at 16:26:56 pm

The Feds may control it, but they have ZERO constitutional authority to do so and never did. It is a State issue short of an Amendment.

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John Ashman
on April 27, 2018 at 17:41:52 pm

The Feds have more and bigger guns and the so-called "fly-over" states populated by folks who know how to use them - ha-ha! Joking of course, but I just don't agree with your assessment, but nor can I definitively prove you wrong - above my pay-grade...

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Paul Binotto

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