As an academic, I have worked in various fields, but my dominant passion has been the libertarian pursuit of free markets and freedom under the law. In recent years, I have focused mainly on constitutional originalism. At the University of San Diego, I am the Director of the Center for the Study of Constitutionalism and have a book coming out next year from Harvard, Originalism and the Good Constitution (co-authored with John McGinnis), which presents a new defense of originalism.
In 1791, James Madison addressed Congress on the topic of a National Bank. The Philadelphia Convention, he said, had explicitly declined to authorize Congress to issue articles of incorporation. The “peculiar nature” of the government the Constitution created was that its powers were enumerated rather than plenary. Even necessary powers could not be summoned by implication. “Had the power of making treaties, for example, been omitted, however necessary it might have been, the defect could only have been lamented or supplied by an amendment of the Constitution.”
Yet a generation later, President Madison stunned his contemporaries by acceding to the constitutionality of a national bank. He gave no indication of having changed his personal opinion. Rather, he explained that one individual’s view, however authoritative, could not trump “repeated recognitions under varied circumstances of the validity of such an institution in acts of the legislative, executive, and judicial branches of the Government, accompanied by indications, in different modes, of a concurrence of the general will of the nation….” Madison was invoking something like the Burkean law of prescription, the idea that long practice “mellows into legality” political practices whose origins were questionable.
Then came another twist: In 1817, the day before leaving the White House, Madison vetoed a bill to use the “bonus” revenue from the bank to build internal infrastructure. Madison was known to support internal improvements, but Congress had no enumerated power to fund them. The improvements could not “be deduced from any part of [the Constitution] without an inadmissible latitude of construction and a reliance on insufficient precedents.” He went so far as to hope the Constitution would be amended to authorize internal improvements.
Supporters of the Bonus Bill were floored: Surely an accession to the bank meant yielding to the expenditure of its profits. Yet the path connecting all these positions was reasonably straight: An unamended change to the Constitution could only be made by sustained, generational consensus. By contrast, the Bonus Bill had “insufficient precedents.” And even then, amendment was the preferred mode of constitutional change.
The reasons for amendment are precisely the originalist ones Professors McGinnis and Rappaport adduce in their excellent Liberty Forum essay. Amendments not only express the constitutive will of the people, they also help to confine what political or judicial precedents tend to leave blurry and boundless. As McGinnis and Rappaport explain, the supermajority requirement encourages the compromise that should attend changes to fundamental law. Madison wrote as much in Federalist 43: “The mode [of amendment] preferred by the convention seems to be stamped with every mark of propriety. It guards equally against that extreme facility, which would render the Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults.”
Responding to McGinnis and Rappaport is a difficult task for one who agrees with their analysis in almost all particulars. When judges do the work of politics, politics tends not to occur. That is true when courts settle separation of powers disputes and Congress feels no need to fight its own battles. It is also true when the courts relieve the pressure for amendments by accomplishing, by fiat, their intents.
But for purposes of provoking conversation, one wonders whether McGinnis and Rappaport exaggerate the importance of judicial decisions while neglecting the more significant factor of public assent to constitutional creep and public reluctance to invoke the amendment procedure. At least in Madisonian terms, constitutional interpretation is at least as much political as it is judicial.
As Benjamin A. Kleinerman and I argued in a paper we presented at the American Political Science Association meeting in 2013, the lack of amendments arises partly from a misunderstanding of Madison’s argument in Federalist 49 for constitutional veneration. If anything, we may venerate the Constitution so much—is it permissible to say “too” much?—that it has become untouchable.
Kleinerman and I noted that the standard for amendments has become what, in Federalist 49, Madison called “great and extraordinary occasions.” Yet Madison—who was closely involved in more than a third of the amendments currently on the books—only says that a fundamental revisitation of the Constitution, not amendments to it, should be reserved for those rare occasions. The need for internal improvements would not meet that standard today, but it did for Madison.
Of course, there are worse sins for a constitutional republic than overly revering its fundamental law. But the result, as McGinnis and Rappaport persuasively show, is not that the Constitution does not change. It is that jurisprudence becomes amendment by other means.
It is also true that amendment is not the only permissible means of constitutional change, or at least clarification. Federalist 37’s case for constitutional liquidation “by a series of particular discussions and adjudications” recognized that the founding document was not clear in all respects, in no small part because of the limitations of language. Much of it would have to work its way out in practice.
Still, that case must be paired with the standards for constitutional interpretation Madison set forth in his 1791 bank speech. “Where a meaning is clear, he said, “the consequences, whatever they may be, are to be admitted—where doubtful, it is fairly triable by its consequences.” So liquidation applies only where the meaning of the Constitution is unclear. In cases of clarity, amendments are necessary for change. A friendly amendment might then be proposed to McGinnis’ and Rappaport’s case for amendments: Amendments should be reserved for cases of constitutional clarity. In instances of constitutional opacity, deference to longstanding practice is due.
The case of the New Deal is instructive in this regard, but also complicating. McGinnis and Rappaport are correct that the New Deal clearly exceeded the constitutional authority of the federal government. I also agree that an amendment would have confined even expansive new authority more than judicial (and public) acquiescence did. Yet the New Deal seems to have met, more so than the bank did, Madison’s test of long public assent.
The question that might be put to McGinnis and Rappaport, then, is what responsibility citizens have to ensure the constitution is changed by amendment rather than fiat or practice. For example, is the fact that the New Deal has become an unwritten addition to Article One, Section Eight, the fault of the Court that alleviated the need for amendments, the generations of citizens who did not see the need for amendment, or both? As citizens, we need to learn not to love the Constitution less, but rather to love it better—which is to say we should love it for the right reasons. In his Farewell Address, Washington said the amendment process was one of them:
This Government, the offspring of our own choice, uninfluenced and unawed, adopted upon full investigation and mature deliberation, completely free in its principles, in the distribution of its powers, uniting security with energy, and containing within itself a provision for its own amendment, has a just claim to your confidence and your support.