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Is Reforming the Constitutional Amendment Process the Real Solution?

Michael Rappaport offers up some interesting, lawyerly suggestions as to how to stop what he claims is the Constitution’s incessant drift toward centralization and nationalism. His suggestions center on revising the constitutional amendment process so that it might be more accommodating to state interests.

Central to the author’s argument is his claim that the lack of constitutional amendments favoring federalism is accounted for by the inherent nationalist bias of the Founders’ amendment mechanism. He notes in passing that our drift toward nationalism might have broad cultural and ideological roots in “historical forces” that support greater centralization, but he downplays those. Instead he suggests that there are equally powerful forces for constitutional amendment that would limit national power. The problem, in his view, is that attempts at constitutionally limiting national power are destined to fail for reasons of institutional design.

Rappaport argues that this is so even though an amendment need not be proposed by Congress. The Constitution specifies that when two thirds of the state legislatures apply, Congress shall call a national convention for proposing amendments. This method, which effectively bypasses Congress, has never been used despite what Rappaport claims is public support for amendments that would buttress state power. The Constitution has therefore functioned, and continues to function, as if only Congress can propose amendments. In the author’s estimation this is because of fears of a runaway convention. If, for example, the states desired a balanced budget amendment, that desire would be overridden by the fear that the convention would take up unrelated matters, or otherwise devolve into dangerous faction. The attempt to limit the objects or outcomes of a convention’s deliberations would itself be the subject of constitutional wrangling, if not crisis. At the very least there is potential for significant dispute about the content of the nation’s fundamental law.

Rappaport proposes reforms that would avoid the runaway convention problem, while claiming to adhere, in broad outline at least, to the intentions of the Founders. His desiderata include the need for supermajorities for proposing and ratifying amendments, and ensuring that amendments are ratified by different bodies than the ones that propose them. And of course any reform must be attractive enough to the states to have a chance of being adopted. These considerations lead him to what he calls the “state drafting reform” whereby two thirds of state legislatures must agree on the exact text of an amendment to trigger a ratification vote, which would require three quarters of the states to be successful.

Modifying the simplicity of this arrangement—for purposes of both efficiency and likelihood of passage—Rappaport suggests that the Constitution ought to authorize an advisory convention of the states in order to hammer out details of the proposed amendment, and that, in tallying ratification totals, each state’s vote ought to be weighted according to the size of that state’s electoral college vote, thus mollifying potential concerns of both large and small states. The author suggests that moving away from strict equality of voting power—at least at the ratification stage—will in effect make the votes of small states more valuable compared with the present system, because it would create a state-friendly amendment mechanism that is more likely to be used in practice. Finally, Rappaport suggests that ratification should be by ballot initiative in each of the respective states so that the same entities (the state legislatures) are not both proposing and ratifying amendments.

All told, Rappaport claims his proposals “would resurrect the Constitution’s original design” by establishing an amendment method that would be useable, and would not require approval of Congress.

How could such a reform come to pass? Surely Congress would not propose it, and the existing national convention method appears, on Rappaport’s own account, to be moribund. But the author suggests the latter method might be used as a one-time tool to alter the Constitution for the purpose of passing the state drafting amendment. The “old, broken car may still be capable of one last trip to the dealership to buy a replacement.” In order to prevent a runaway convention in this one instance, the states could hold a voluntary drafting convention to agree on both the specific wording of the amendment and on a strategy for its ratification. They could also pass laws and make exhortations against a runaway convention, and do whatever they can to ensure convention delegates remain faithful to, and limited by, their singular mission.

In politics—particularly high constitutional politics—the devil is often in the details. But what bedevils Rappaport’s proposal is the big constitutional picture he passes over lightly. He makes only brief mention of the “nationalist approach” that has caused us to “treat the nation more as a single entity that should be governed by uniform standards.” But this approach began with a sea-change in American political thought commencing toward the end of the 19th century, in the form of the denial of the natural-rights foundation of the Constitution and, with that, the denial of the idea that the objects of the national government are limited in principle. No strictly legalistic approach can correct those fundamental errors.

The sea-change rested on a rejection of the earlier constitutionalism of fixed principles, cognizable words, modest executive and judicial branches, and the limits imposed by federalism, to an organic or progressive constitutionalism in which the very notion of fixity or constitutional principle is something that must be overcome. The new, progressive constitutionalism built a philosophy of history by melding strains of social Darwinism and philosophical pragmatism. That philosophy swept the intellectual classes almost immediately after the age of Lincoln. It has led us from the New Deal, to the Great Society, to a modern liberalism that sees the Constitution, whatever its nominal terms, as almost infinitely malleable, depending on the perceived exigencies of the times.

The age-old question of “what works,” politically—or what should be given a chance to prove itself—was, throughout the 20th century, increasingly divorced from a sense of constitutional restraint, as it was informed by an organic conception of an unlimited state. By 1932, Franklin Roosevelt was telling Americans that the “earlier concepts” of the American constitutional order had to be constantly adapted to suit the conditions of the day. In the course of doing that, he relied on a striking reconfiguration of the Founders’ constitutionalism. He claimed that “The Declaration of Independence discusses the problem of Government in terms of a contract…Under such a contract rulers were accorded power, and the people consented to that power on consideration that they be accorded certain rights. The task of statesmanship has always been the re-definition of these rights in terms of a changing and growing social order.” In this formulation, rights themselves are decidedly political rather than pre-political; they are the gifts of government, rather than of nature and nature’s God. They are therefore eminently negotiable in the context of a changing and growing social order.

And so it was, with the New Deal, that we began to see the progressive synthesis bearing real fruit, in five different but overlapping ways:

  1. the substitution of purported expertise for the invisible hand of the marketplace;
  2. federal projects, and more significantly, programs;
  3. the national administrative state in all its manifestations;
  4. the overcoming of federalism;
  5. the growth first of federal executive, and later judicial power.

All these things were embraced in the name of the uniform, national superintendence of social and economic forces, to ensure that the change enlightened thinkers hope for—and believe at a deep level that history requires—is in fact the change we get. And given the power of the desire for progressive change, the founders’ Constitution could, and must, be relegated to an afterthought.

It’s not that the Founders’ amendment mechanism has been unable to keep up with the times, but that no amendment mechanism can forestall the growth of the national government in the face of such a revolution in thought. In such a world, even a state drafting amendment along the lines Rappaport suggests would be akin to rearranging deck chairs on the Titanic.

Rappaport speaks as if there are amendments limiting national power that would have the requisite support of supermajorities within the states—if only we got the mechanics of the process right. That’s a very big if. To cite but one of his examples—a balanced budget amendment—it’s hardly clear that the states or the people would, after thorough deliberation (or demagoguery, especially, though not exclusively, in the ratification stage), be willing in effect to drop themselves from the federal payroll for the sake of long-term fiscal sanity. That would be true whatever the constitutional process, even assuming that a balanced budget amendment could possibly lead us back to such sanity. It’s far easier to imagine support for largely symbolic amendments such as flag-burning, than it is for things that might fundamentally alter the parameters and potential of the administrative state. It’s worth noting too that relying on populist mechanisms for constitutional amendment has been tried—for progressive purposes—in California, resulting in one of the longest and arguably most unworkable constitutions in the world, and one of the most expensive governments in the United States.

On the other hand, if Rappaport’s amendment formula were likely to work in the way he suggests, one wonders how and why the existing constitutional hurdles might be met for this “one last trip to the dealership,” but not for other decentralizing purposes. Rappaport’s proposal would either be inordinately hard to pull off, or, if weren’t, there would be no need for it. It’s all things to no people.

And even assuming, for the sake of argument, that the proposal came to pass and a series of seemingly pro-federalism amendments were added to the Constitution, we would invariably get into the tricky business of constitutional interpretation. Such interpretation would still likely be undertaken by federal judges largely under the spell of the progressive jurisprudence which has dominated the law schools for much of the last century. They would be prone to tendentiously favoring the “nationalist” interpretation of each and every new clause they could get their hands on.

So, while I share Rappaport’s deep concerns about the nationalist drift of our Constitution, I’m not willing to say the Constitution itself has contributed to that drift. Blame can better be laid at the feet of our elites—politicians as well as judges—who have drunk the progressive Kool-Aid. In a world of scarce resources—time, money, energy—those who would restore the Founders’ Constitution had best concentrate their efforts on overcoming the progressive ideology that time and again has led us away from our Founders’ understanding of the important but limited purposes of national government as guarantor of the equal natural rights of human beings.

As Dostoevsky says in The Devils, the fire is in the minds of men and not in the roofs of houses.

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