Constitutional legalism is no panacea, but it is the best we lawyers can do.
I have written several posts on the constitutional amendment process, but I cannot let Eric Posner’s new piece for Slate magazine pass without comment. Eric’s piece is an excellent example of the conventional wisdom that the constitutional amendment process is too difficult – a wisdom that I believe is seriously mistaken.
Eric writes that “any proposal to amend the Constitution is idle because it’s effectively impossible” – because it is too difficult to amend the Constitution. But as I have argued before and with John McGinnis, the main reasons we do not see constitutional amendments are due to nonoriginalism. These reasons include:
1. It takes a consensus to amend the Constitution, and that consensus takes time to develop. But nonoriginalist courts judicially update the Constitution before that consensus has enough time to develop.
2. Some amendments are attractive only if the Court can be trusted to enforce them as written. But if the Court is nonoriginalist, then people may not trust the Court to enforce the amendments and therefore may not want to give the Court more power.
3. Since constitutional amendments are hard to pass, interest groups will often seek alternatives that are easier to achieve, such as packing the courts with people who will rewrite the Constitution to further the group’s vision. Once again, this will only happen if nonoriginalism is allowed.
4. Constitutional amendments often require compromises in order to secure a consensus. But if there are alternative mechanisms, such as judicial updating, interest groups will choose not to compromise and instead will seek to have judges appointed who share their vision.
Thus, Eric has the matter in reverse. It is not, as he argues, that “Because Article V is a dead letter, people must find different ways to change the Constitution.” Instead, it is because people have found other ways to change the Constitution, that Article V is a dead letter.
Eric notes that it is easier to amend the Constitution in other countries, including in Western Europe. That is true, but that does not mean that those countries are correct. Moreover, the situation is more complicated than Eric suggests. While he notes that in Germany an amendment requires a two thirds majority in each House, he fails to mention that portions of the German Constitution are formally unamendable.
Finally, Eric notes that the country has grown in population, in states, and in federal legislators. True enough, but many significant amendments were passed early in the 20th century, including the Income Tax, Direct Election of Senators, Prohibition, Women’s Right to Vote, and Prohibition Repeal, when the country was quite large.