I am torn between spending my allotted space on noting my real differences with McGinnis and Rappaport’s lead essay and instead indicating what may be surprising areas of agreement.
An example of the former occurs in the second sentence: I think it is misleading to say that “since the New Deal, the most important constitutional changes have occurred through judicial fiat.” This is not to deny that a number of controversial Supreme Court decisions have indeed changed the constitutional landscape. These include, but are certainly not limited to, the reapportionment cases, Roe v. Wade, and Buckley v. Valeo, not to mention Shelby County. But their emphasis on the judiciary, altogether typical of legal academics, avoids recognizing that the most truly “important constitutional changes” have probably involved ever-more-extensive presidential assertions of power and legislation passed by Congress under its Commerce Clause powers.
One can say, of course, that the Court legitimized the latter in the post-1937 decisions, but, after all, one can also note simply that the judiciary was merely exercising a commendable judicial restraint. As to the assertions of presidential power, beginning, say, with Harry Truman’s decision unilaterally to take the country into the Korean War, the Court has written almost nothing of genuine interest, and we have moved all-too-close to what Jack Balkin and I have labeled a “constitutional dictatorship” with regard to presidential authority in the realms of foreign and military policy. It may be telling that a fellow originalist, Virginia professor of law Saikrishna Prakash has recently published a first-rate book attacking originalists and “living constituitonalists” alike for acquiescing in what he regards as unmerited presidential power.
Where we most completely disagree is on their assertion that a return to (their form of) originalism would cure the ailment they detect. Not only am I a skeptic about the very possibility of the originalist enterprise. More to the point, I stand with John Marshall’s assertion in McCulloch v. Maryland that a constitution “designed to endure . . . must be adapted to the various crises of human affairs.” What Justice Antonin Scalia proudly affirmed as a “dead Constitution,” if truly followed in all “originalist” particulars, might well lead to the death of the constitutional order itself. This is something that all serious judges, most notably Marshall, recognized. A constitution drafted in 1787 to structure the government of roughly 4 million people (only a small minority of whom could actually participate in politics) stretching from what is now Maine to the southern border of Georgia and westward to the east bank of the Mississippi River cannot seriously be expected to be fully adequate to governing a country of over 325 million residents ranging from the aforementioned Maine to the mid-Pacific and, depending on one’s approach to Puerto Rico and the Caribbean. And there’s also the reality of weapons of mass destruction and viruses that recognize no state or national boundaries in an age where jet travel has replaced the stagecoach.
But by this time almost all of us, including the readers of this debate, can rehearse the various thrusts and parries that have become part of the now three decades of heated debate about the varieties of “originalism,” ranging from the rather austere version promoted by McGinnis and Rappaport to the “living originalism” identified with Jack Balkin. Fellow “originalists” like Randy Barnett and Steven Calabresi have recently taken to arguing that a host of the opinions that McGinnis and Rappaport might view as “judicial fiat” are congruent with the original public meaning of the Fourteenth Amendment. Insofar as some proclaim that “we are all originalists now” or, in Will Baude’s and Stephen Sachs’s words, “originalism is our law,” that may be true only because, like all other presumptive methodologies of constitutional interpretation, it proves in practice to be extraordinarily malleable in the hands (or pens) of suitably motivated judges.
So let me indicate the places where I strongly agree with them, which is their general view that we have paid a great price by failing to engage in formal amendment. I’ll begin with the Equal Rights Amendment. Many reasons can be offered for the ultimate failure of the ERA to make it into the authoritative text. One is surely the sheer difficulty of amending the Constitution at all. But I suspect that McGinnis and Rappaport are correct that as the decade went by, it was harder and harder to argue, given certain Supreme Court decisions, that it would really make a significant legal difference. To be sure, its absence is of cultural significance, a part even of the “culture wars” that have so structured our political debates.
But, ironically or not, if one looks at some of the testimony of proponents of the ERA in the early 1970s, solemn assurances were given Congress that it would not, for example, require gender-neutral bathrooms or require that women be allowed to serve in combat positions in the armed forces. The absence of the ERA has not proved fatal to developments in both of these areas, nor can one argue that the presence of the ERA would necessarily have dictated them in the absence of the great cultural shifts that have occurred especially in the past quarter-century.
Still, one can easily agree with McGinnis and Rappaport that general legitimacy is more likely to be accorded textual additions to the Constitution that surmounted the process of amendment than to declarations by elite lawyers that the Commerce Clause or, even more so, the “majestic generalities” of the Fourteenth Amendment turn out to license a national police power or require state recognition of same-sex marriage. The same thing can be said, of course, about declarations by equally elite lawyers trained at Harvard and Yale that Congress does not have the power to regulate the medical services industry by requiring health insurance or to require states to demonstrate that proposed changes in voting rules do not in fact work against the interest of politically vulnerable minorities. I happen to disagree with their assertion that the “original Constitution” was a “plan of enumerated, not plenary, national powers,” but full examination of this dispute requires going down various historical rabbit holes. And it might not matter if in fact one could easily amend the Constitution in order to provide unequivocal textual proof for one position or another.
But the real problem is the near-impossibility of constitutional amendment, given the restrictions of Article V. It is telling, I think, that McGinnis and Rappaport assure us in effect that the liberatory New Deal decisions by the Court, overturning the restraints imposed by Court’s prior majority, were unnecessary. “[T]he requisite supermajorities were likely available,” they assert, “to pass a constitutional amendment overruling the series of Supreme Court cases that frustrated Democratic legislation” (emphasis added). But they themselves note that although Democrats did indeed have large super-majorities in the House and Senate, “[t]he party controlled [only] 34 of the 48 state legislatures completely.” 34—or even 34-1/2—is not the equivalent of the 36 states whose legislatures would have to agree to a constitutional amendment. (Today the number is 38.).
The ERA itself is important evidence. It was initially proposed by overwhelming majorities in Congress, with the (constitutionally unnecessary) support of President Richard M. Nixon. Hawaii ratified the amendment within an hour after it was formally sent to the states for ratification, and almost everyone assumed it would quickly enter the Constitution. That did not happen, of course, because Phyllis Schlafly brilliantly organized a movement to stop the ERA, and it succeeded, not least because, for example, Illinois requires a 3/5 majority in its legislature to ratify an amendment, and the ERA did not attain that magic number. If one ignores the much-debated issue of the legitimacy of recission, 35 of the now-necessary 38 stated, with a hefty majority of the national population, ratified the ERA, but it was all for naught.
McGinnis and Rappaport cite historian David Kyvig for the assertion of “likelihood” that FDR could have gotten an amendment through, but one is entitled to be skeptical, especially if one confronts the all-important practical question of trying to figure out exactly what such an amendment should have said. Should it have affirmed the existence of a “national police power” or the ability of Congress to pass any and all laws it thinks “necessary and power” to “attaining the general welfare” or “establishing justice,” as might be suggested by the Preamble to the Constitution? I seriously doubt McGinnis and Rappaport would have supported this, and it is all too easy to imagine that the denizens of the Liberty League who organized in vigorous opposition to the New Deal would have been at least as skillful as Schlafly in finding the necessary support in thirteen separate state legislative houses to stop any such “radical” addition to the text.
There is also the question of time. To put it mildly, most Americans viewed the Great Depression as an “emergency,” as has been true of other episodes both past and recent in American history. Challenges are not suspended in order to accommodate the time it takes, even at best, to amend the U.S. Constitution. To propose an amendment in 1937 would have run the risk not only that it would fail because of well-placed opposition by a minority of Republican states, but also that even success might come too slowly. Would states like Texas, where the state legislature meets only every two years, necessarily have called special sessions to speed the process up? And so on.
But the real point is that I agree wholeheartedly with McGinnis and Rappaport that we have paid an enormous price as a polity in making constitutional amendment in effect unthinkable and, therefore, relying on what might well be regarded, in part depending on one’s own politics, as overreaching legislatures, administrative agencies, presidents, or courts. Publius in Federalist 1 spoke of the unique opportunity being afforded Americans to demonstrate that it was possible for “we the people” to engage in “reflection and choice” about how we wished to be governed. James Bradley Thayer, in his classic defense of judicial minimalism at the end of the 19th century, wrote of his fear that reliance on courts would diminish the capacity of the citizenry to manifest such “reflection and choice.”
I therefore gladly endorse McGinnis’s and Rappaport’s observation that vigorous debate even about “one amendment would have naturally led to another. The American people would have retained the habit of evaluating whether their representatives’ national powers were adequate rather than leaving their decisions to the Supreme Court.” It is an idle fantasy to assume that the Court—or Congress or the institutional presidency—is an adequate substitute for an engaged citizenry that genuinely does believe that the “consent of the governed” is an ongoing reality and that, in the language of the Declaration, they are authorized to “alter or abolish” any given feature of the current constitutional order when they believe that would be conducive to our “public happiness.”
All of this being said, it is perhaps necessary (and proper) that we begin by amending Article V itself, insofar as its requirements lead almost all rational political actors to “abandon all hope” and to look either to adaptive “workarounds” or, at least as bad, sullenly to acquiesce in our present situation and then try to kid ourselves that it really isn’t so bad after all. If something can’t really be fixed, then the temptation is very high to proclaim that it isn’t broken. No doubt McGinnis, Rappaport, and I would disagree vigorously about what is or is not broken in the current constitutional order. But those disagreements themselves, if made during a serious national debate about amending the Constitution, could contribute to a re-invigoration of our national political discourse that now often tends to be lost in the pettifoggery of lawyer’s arguments ostensibly trying to apply the precedents of a judiciary that is more-and-more treated as merely the Wizard of Oz so far as its genuine authority and entitlement to respect are concerned.