Federalism, Originalism, and Constitutional Amendments

John McGinnis and Michael Rappaport make the straightforward and hard-to-contest point that we have few constitutional amendments because we have largely replaced the amendment protocols of Article V with judicial usurpation of that process: why change the text of a Constitution when you can simply helpfully re-interpret it away? Moreover, even many of those who defend originalism and invoke the importance of Article V amendments have been too afraid to deploy the plausible option of the state-based alternative proposal process.

I would like to extend the authors’ cogent analysis by suggesting one necessary precondition for restoring the originalist constitutional culture—convincing progressives of the merits of federalism—and conclude with one possibility of partly rejuvenating a broader constitutional culture through state constitutions.

In an underappreciated 1792 essay, Madison elaborated on his Federalist 51 argument about redundant structural guardrails for liberty and declared it essential to maintain the Constitution’s federalism. This was not only to avoid either anarchy or consolidation, but also because the separation of powers and federalism were inextricably linked: a consolidation of power would result not just in a stronger central government, but specifically would be the “high road to monarchy.” Madison recognized these efforts would be hard, and there would be hard cases—but it would be important nonetheless.

Those hard cases, especially in light of changing times, were precisely what the amendment process is for—a series of debates about what should and should not be federal powers, as McGinnis and Rappaport explain in their alternate history of a world where the New Deal was approved not by judicial fiat but by the conversations of a constitutional amendment.

That’s exactly what happened in the early 19th century, as a variety of federal rebalancings were added to the Constitution. As McGinnis and Rappaport cover the 16th, 17th, and 19th amendments, I’ll say a few words about the 18th.

I have written at Law & Liberty before about how, whatever its merits as social policy, Prohibition reflected a much healthier constitutional climate, one in which those seeking to rebalance power believed they had to persuade their fellow citizens in the most authoritative way possible: not just one, but two constitutional amendments. Importantly this meant that those on the losing side abided by the results even if that entailed backing policies that both they and their constituents opposed. Dutifully enforcing what they understood their constitutional oaths to require, even if the face of public opposition, in some cases came at the cost of officials’ own political careers. (Ironically, some of these victims of public backlash supported some form of prohibition as a state-level policy while thinking it should be no business of the federal government to dictate it to the people of a diverse country). As I argued in a more expanded treatment, the contrast between the seriousness of the Eighteenth Amendment, and the casual hand-waves of Wickard v. Filburn and Gonzales v. Raich authorizing a nearly identical federal policy regarding marijuana, is a sharp illustration of precisely the shift in political culture that McGinnis and Rappaport identify.

McGinnis and Rappaport rightly attribute this change to the New Deal, when Franklin Roosevelt focused on altering the Supreme Court, rather than undertake a concerted effort to formally give the federal government “substantial new powers—but ones that were still limited,” such as specific authority to regulate wages, hours, and working conditions in manufacturing and agriculture.  

Of course, originalism was not always seen as the exclusive domain of the right. While there has always been a Wilsonian streak among some progressives holding the Constitution’s limits in contempt, other progressives used to invoke the once unifying originalism and the importance of amendments (just as they used to invoke federalism, as I note in my forthcoming book on the now vanquished Progressive Federalism). We would, today, hardly know what to do if one of the most left-wing governors in the country said

…It appears to me that where new questions arise that obviously were not contemplated by the makers of the constitution, they should be handled either by the states, in accordance with the reserve power in the 10th amendment, or granted to the federal government by proper constitutional amendments, rather than by strained legal decisions of the Supreme Court

But Arizona’s Democratic Governor George Hunt said just that. He also lamented “the gradual destruction of states’ rights,” aided by “the tendency of the courts to ignore the literal wording of the Constitution and make their decision on what they considered may be the greatest good for the greatest number.” One could even cite numerous quotes from Roosevelt in his pre-presidential life sounding just like George Hunt or even Barry Goldwater in fretting about loose judicial construction usurping states’ rights. So as alien as it sounds today, not all progressives, perhaps not even a majority, shared Woodrow Wilson and Theodore Roosevelt’s contempt for originalism and federalism.

It’s necessary to dispel the myth that the states are the graveyards of constitutional amendments.

But most do now. Bruce Ackerman, arguably the leading progressive theorist of extraconstitutional “amendment” processes, is quite blunt in saying that the problem with Article V is that its ratification procedures take federalism seriously, when, he argues, Americans do not and should not. They are, he laments, “a nation-centered people stuck with a state-centered system of formal revision.” A few extremely opportunistic feints against the last president aside, there is no notable commitment to federalism on the left today: the New York Times insinuated the Tenth Amendment was an illegitimate topic of a citizenship test question because it was a “favorite” of conservatives, to say nothing of the increasingly uniform disdain for the Senate and Electoral College’s state-based structures among the American left. Rehabilitating progressive sympathy for federalism is deeply connected to—and perhaps even a necessary precondition for—the constitutional amendment culture that McGinnis and Rappaport call for.

Indeed, as part of that, it’s necessary to dispel the myth that the states are the graveyards of constitutional amendments. 27 amendments sent to the states have passed, and only 6 have failed, including the original (Corwin) Thirteenth Amendment that was superseded by the abolitionist one we implemented instead. Except for the child labor and equal rights amendments, both made unnecessary by judicial fiat as McGinnis and Rappaport show, no seriously popular amendment has failed because of the state supermajority requirement.

As McGinnis and Rappaport suggest, however, conservatives have also been complicit in the erasure of constitutional amendments, and in a way that is even more surprising than progressives: they have blocked the use of the alternate path provided in Article V. For example, the convention of states movement, championed by, among others, the late Senator Tom Coburn, would bypass Congress and have two-thirds of the states call a convention for the purpose of proposing amendments specifically seeking to limit federal power, such as by restoring more limited originalist understandings of interstate commerce powers. (Perversely, decades of judicial drift mean such efforts would be using the amendment process less to change the Constitution than to actually  implement again its text through clarifying and restorative amendments.)

But, as McGinnis and Rappaport allude to, citing fears of a “runaway convention,” conservatives have helped block that process. Here in Arizona, for example, such fears blocked the call for the convention for several years. A quick perusal of news stories indicates that a similar story has held in other states, such that even though Republicans control both houses in 30 states, only fifteen have passed the Convention of States proposal.

McGinnis and Rappaport focus only on the original meaning of the Article V convention process to show why a runaway convention is unconstitutional, so in the spirit of their Good Constitution, I’ll say a word about its beneficial design here. Against those who would fear a runaway convention, the most likely result from a convention of states is, unfortunately, simply nothing. Achieving the ratification of three-quarters of the state legislatures will be difficult enough for things like term limits, to say nothing of substantive restrictions such as a correction of our interpretation of the interstate commerce power.

Even were the members of the convention—who presumably would be selected for fidelity to the specific call—to somehow unconstitutionally defy the convention’s specific mandate to limit federal power and propose unrelated or radical amendments, such a proposal would again have to clear the same three-fourths state ratification threshold. And any effort to replace the Constitution entirely, like the Articles, would similarly fail: the US Constitution only bound the states that agreed to it, and Rhode Island and North Carolina were briefly independent nations while withholding their consent from the Constitution. There is simply no plausible risk of a runaway convention generating the outcomes feared by convention critics.

I would like to end on a positive note about one way we might slowly rebuild a process of constitutional amendment, and that is by teaching Americans about our largely forgotten state constitutions, as we try to do here in Arizona. Legislators could start small, passing state amendments that do not make direct policy change but reinforce locally popular rights or, as state constitutions do, teach fundamental values in their states.

For example, conservatives could continue strengthening the individual right to keep and bear arms in their state constitutions, or alternatively could follow revolutionary-era Massachusetts (Art 1.4) and other states by adding language about the importance of federalism to the theoretical sections at the beginning of state bills of rights. Conversely, rather than rely on judicial distortion of states’ charters, progressives fearing the demise of Roe v. Wade might explicitly enshrine the right to abortion in their state Constitution, thereby preserving the status quo they favor. Such constitutionalism would help reinforce the related cultures of constitutional amendments and the recognition of state diversity under federalism.

However we do it, Americans would be well served to heed McGinnis and Rappaport’s sage advice and help revive a culture of taking the Constitution’s text seriously.