New litigants challenging the rules of the administrative state will be arguing in the future to a Supreme Court that is ready to listen.
In modern times, constitutional amendments have largely disappeared. The last time Congress proposed a successful amendment was fifty years ago in 1971 with the Twenty-Sixth Amendment that guaranteed the right to vote to eighteen-year-olds. Indeed, since the New Deal, the most important constitutional changes have occurred through judicial fiat. While many commentators claim that the absence of constitutional amendments is due to political division and the strict supermajority rules required to amend, the primary culprit is the judicial branch’s failure to follow the Constitution’s original meaning.
It may seem surprising that constitutional theory is so intertwined with the amendment process, but the connection is direct. If judges do not follow the original meaning but instead issue rulings that seek to revise the Constitution in the hope of improving it, they take the wind out the sails of a political movement that would otherwise work for the passage of an actual amendment. Such judicial revision also makes it less likely for amendments to pass generally, because citizens will only amend the Constitution if they trust judges to follow what the amendment actually says. When judges engage in creative reinterpretation, enacting an amendment simply opens up a new realm of judicial innovation.
When judges have been originalist with respect to the relevant part of the Constitution, their interpretive stance energized the amendment process. When they were nonoriginalist revisers, they stifled the amendment process.
Originalism Encourages Constitutional Amendments
This perspective on constitutional interpretation shows that the simple claim that the Constitution is too hard to amend has a conceptual flaw. The difficulty of amendment crucially depends on the culture of constitutional interpretation that surrounds the Constitution. Originalism and the functioning of our constitutional amendment process are a package deal. Distort constitutional interpretation and you will put up a roadblock to constitutional amendments.
An example of originalism enabling the constitutional amendment is the Supreme Court’s decision in Oregon v. Mitchell. In that case, the Court correctly held that the Constitution did not provide Congress with the authority to regulate voting ages in state elections. Congress immediately responded by proposing a constitutional amendment guaranteeing the right to vote for eighteen-year-olds. Even though the amendment was thought to favor the Democrats over the Republicans, it was ratified in a record time of 170 days. Significantly, if the Supreme Court had read the Constitution as allowing Congress to regulate voting ages in state elections, no amendment would have passed.
Even more consequential amendments have been prompted by the Court’s fidelity to the Constitution. In Pollock v. Farmers’ Loan & Trust Co., the Court held that Congress lacked the power to impose an income tax on income from property unless it was made proportional to population among the states because, unlike a sales tax or tariff, such a tax was a “direct tax, “and thus required apportionment. A political movement then developed in favor of a national income tax and succeeded in passing the Sixteenth Amendment authorizing it.
Another important amendment was the Nineteenth, which guaranteed the right to vote to women. In an era of nonoriginalism, both this amendment and the income tax amendment would have been likely rendered unnecessary because a court would have reinterpreted the Constitution to reach the new result. But in that more originalist age, political movements needed to be formed to pass these amendments, and such movements were adequate to the task.
The passage of the Nineteenth Amendment also underscores that, when people believe justice demands it, amendments can be passed over the objections of vested interests. Men diluted their own voting power in giving women the right to vote. Similarly, state legislators gave up their own power to select Senators when they ratified the Seventeenth Amendment that provided for the popular election of Senators.
The Sixteenth, Seventeenth, and Nineteenth Amendments profoundly altered American politics by either fundamentally changing the structure of our government or transforming the franchise of those who elected it. Yet, they were sought and ultimately enacted in a period of political polarization not unlike our own, suggesting that it is not just partisan gridlock that blocks necessary amendments.
Crowding Out Amendment Advocacy
The flip side of the coin is that nonoriginalism impedes the amendment process. While many people decry the failure to enact the Equal Rights Amendment, it is seldom recognized that nonoriginalism was a primary cause of its defeat. Judicial updating created two problems for the ERA: First, in a series of cases in the early seventies, the Supreme Court revised the Constitution by imposing a higher standard of scrutiny for gender classifications through a nonoriginalist interpretation of the Fourteenth Amendment. This revision of the amendment made the ratification of the ERA seem less necessary. State legislators would have sensibly believed that the Court had already taken care of the worst instances of discrimination itself and was on its way to providing even stronger protections against sex discrimination in future decisions.
Second, the Court’s nonoriginalist reasoning concerning sex discrimination and many other issues at the time also hindered the ERA. Opponents argued that the Court might construe the amendment to impose a radical vision of sexual equality, such as unisex bathrooms and gay marriage, a vision that went beyond the understanding of equality between the sexes that informed the ERA at the time. It is hardly a surprise that, given the declining faithfulness with which the Court interprets our fundamental law, citizens are less willing to trust it with new provisions to interpret, particularly if these provisions might be stretched to apply to controversial matters. Consider an example concerning ordinary law: If courts routinely failed to interpret contracts according to their terms, there would be fewer contracts. The incentives the Court creates matter more than partisans of nonoriginalism would have us believe.
The most important area where the courts revised the Constitution instead of relying on constitutional amendments was the New Deal. At that time, there was wide support in the country for expanding the federal government’s power to regulate the economy. The Democrats—who particularly favored such expansion—had very large majorities in Congress in 1937 (75-16 in the Senate and 334 -89 in the House). The party controlled 34 of the 48 state legislatures completely and one house in the other seven. Thus, as David Kyvig has suggested, the requisite supermajorities were likely available to pass a constitutional amendment overruling the series of Supreme Court cases that frustrated Democratic legislation.
But instead of sustaining a political campaign to obtain amendments that would have expanded Congress’s power, Roosevelt and the Democrats chose to appoint justices who were dedicated to overturning a core structure of the original Constitution—its plan of enumerated, not plenary, national powers.
This choice and the resulting judicial creativity had fateful consequences for our constitutional order. It began a process of changing the Constitution through judicial amendment rather than constitutional amendment, a process that has continued to this day. It also allowed the Roosevelt Administration—which appointed 8 of the 9 justices—to expand its powers without having to engage in the compromise necessary to secure supermajorities. This decision has forced future courts to wrestle with a conflict between the constitutional text and the changes that the judiciary wrought.
What We Have Lost
This action has also resulted in a series of lost opportunities—amendments that do not appear in our current Constitution, but that could have been pursued in a world that respected original meaning. One amendment would likely have overruled some of the cases that interpreted the Commerce Clause according to its limited original meaning and given Congress power over a set of categories of economic activity beyond the commercial acts of buying and selling, such as the regulation of labor, agriculture, and manufacture. This hypothetical New Deal Amendment could have provided substantial new powers—but ones that were still limited.
If a New Deal Amendment had provided new substantial but still limited powers, it would have also given impetus for a new generation to add its own amendments further expanding Congress’s power. For instance, the demands for greener national policies in the 1970s would likely have created a bipartisan consensus for an amendment that would have expanded Congress’s power to address substantial externalities of pollution among the states.
Crucially, 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 those decisions to the Supreme Court.
The benefits of using the amendment process rather than the Court to change the Constitution are many. As we have argued elsewhere, the supermajoritarian process for amendments (and to enact the original 1789 Constitution) is likely to lead to beneficial provisions. It requires a consensus that preserves allegiance to our fundamental law. It also requires a rich deliberation that is likely to separate out those provisions that should be entrenched against ordinary politics and those that should not.
The alternative of judicial revision requires no such consensus or continental deliberation. Judicial decisions can be made by a narrow majority. And justices can hardly replicate a continental consensus, whatever the majority. They are a group of elite lawyers who all come to live in Washington, D.C.
Moreover, nonoriginalist decisions pose a continuing dilemma for maintaining the operation of the Constitution as originally enacted. Justices can choose to overrule the decisions that have revised the Constitution, but overturning precedent may harm the reliance interests that have developed around them. If, on the other hand, justices retain the nonoriginalist precedent, that can generate further nonoriginalist decisions that will make the Constitution recede ever further from its presumptive beneficial original meaning and structure.
Fortunately, the last few Republican presidents have not made the same choice as FDR. They have appointed justices who do not see their mission as revising the Constitution. The last three appointments have particularly followed this model: Although they may differ in their views as to what originalism specifically requires, Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett all respect an originalist model of interpretation. Since the 1990s, scholars have also contributed to a renewed culture of originalism which litigators then translate into arguments for the Court.
This golden age for originalism could serve as the beginning of a golden age for constitutional amendments. A Court that refuses to update the Constitution—even when the provision interpreted is no longer optimal—invigorates the constitutional amendment process. Originalism also provides confidence that any constitutional amendment passed will be interpreted according to its terms. Constitutional change would then require creating a social movement and doing the hard work of persuading one’s fellow citizens.
Article V Conventions
Another reason why the constitutional amendment process has not produced amendments is the failure of the Article V convention method—a failure which is also due in part to nonoriginalism. While all of the existing 27 amendments were enacted through the congressional proposal amendment method, which requires two-thirds of each house of Congress to propose an amendment, the Constitution also includes an alternative amendment process. Under the convention method, two-thirds of the states can apply to Congress to call a convention for proposing amendments. The amendments proposed by the convention then must be ratified by three-quarters of the states, as with amendments proposed by Congress.
The convention method was a key part of the Constitution’s plan for amendments. The Framers understood that a constitution with only a congressional proposal process would be seriously defective. As George Mason said in the Philadelphia Convention, “it would be improper to require the consent of the Natl. Legislature [for an amendment], because they may abuse their power, and refuse their consent on that very account.” The Framers included the convention method to prevent Congress from having a veto on all amendments—a veto that would protect it against all reforms of congressional authority.
Unfortunately, the convention method has proven ineffective. Not only has this method failed to yield an amendment, it has never even been used to call a convention. Without a functioning convention process, many amendments that have enjoyed significant support have nevertheless been unable to secure approval. This was not because the supermajority rules in the amendment process are too strict, but because Congress would be unwilling to propose such amendments. Amendments establishing congressional term limits, a balanced budget requirement, and the line-item veto all had significant support in the last several decades, but never had a real chance of being enacted because they would reduce Congress’s power. Such amendments might have passed if the convention process functioned.
The main problem with the convention method is the possibility of a runaway convention. A runaway convention occurs when the states apply for a convention on a specific subject, such as a balanced budget amendment, but the convention ends up proposing amendments on unrelated subjects, such as gay marriage or school prayer. Because of the fear of a runaway convention, many state legislators are unwilling to apply for a convention.
But the original meaning of Article V allows conventions limited to a specific subject, therefore prohibiting hijacked conventions. For many years, though, nationalist nonoriginalist scholars, such as Charles Black and Walter Dellinger, argued that the Constitution did not allow a limited convention. These scholars significantly contributed to the fears of state legislators that their applications for a limited convention might lawfully result in conventions that proposed other amendments. It is perhaps no accident that these scholars were no fans of Article V conventions, since the conventions empowered the states to pass amendments that would overrule actions taken by nonoriginalist Supreme Courts and Congresses.
But limited conventions are clearly constitutional under the original meaning and therefore runaway conventions are unconstitutional. The Constitution says that Congress, “on the Application of the Legislatures of two-thirds of the several States, shall call a Convention for proposing Amendments.” Is a limited convention a “Convention for proposing Amendments?” Clearly it is, and therefore the Constitution allows for such conventions. The remainder of the government is therefore obligated to respect the limits imposed on those conventions.
While the language of Article V does not answer every question about the nature of conventions with such clarity, the limited convention issue is by far the most important. Thus, as the originalist culture strengthens, we can reasonably hope for more applications to have amendments passed by limited conventions.
To be sure, Americans are out of practice with respect to constitution making. They must recognize again that major constitutional amendments are rarely the work of a few years. They require extensive political networking and persuasion on a national scale. But that is as it should be. Adding to the Constitution is a serious matter, and getting good amendments that will stand the test of time requires sustained deliberation. An originalist Supreme Court forces the nation back into a deliberative mode and mood.
Forcing that deliberation among our fellow citizens is one of the great advantages of originalism. It requires Americans to engage with one another politically and make compromises to strike the supermajoritarian consensus that has given birth to previous amendments now regarded as essential to our way of government. That constitutional process of compromise encourages individuals to consider what they have in common rather than regard each other as threats—a process day-to-day politics often encourages with its emphasis on getting control of the administrative state and issuing regulations that will most favor one’s own side.
In this new world, those favoring originalism and the amendment process will begin to march again under a single banner and that banner will read: We the People remain the makers of our Constitution. We add to the work of our ancestors, trusting our successors to respect our work until amended as much as we should trust that of our predecessors.