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How Originalism Energizes the Amendment Process

In a recent post Mark Pulliam has nicely observed that the amendment process itself makes the Constitution a living document, capable of responding to new circumstances.   But  defenders of  living constitutionalism as an interpretive theory do have a response to this  position. They have argued that the amendment process is just too stringent and must be supplemented by judicial updating. Mike Rappaport and I have provided two interrelated arguments about why these theorists are wrong, thus bolstering Mark’s position.

First, the amendment process does not seem too hard, if we look at the six amendments that came closest to becoming law—those that obtained passage in Congress by 2/3 majorities but foundered in the state ratification process.  Most of these amendments were not good ones and the most consequential would have made slavery legal and even entrenched that position against  subsequent constitutional amendment.

It is true that most people today would favor the amendment banning child labor which passed Congress, but did not succeed at the ratification stage.  But we argue that the amendment ultimately failed because Franklin Roosevelt decided not to push it: the amendment was too narrow an expansion of federal power for his purposes of centralized economic control. Instead, he appointed justices who were willing to update rather than follow the original meaning of the Constitution and so provided the federal government with almost plenary power of economic regulation under the Commerce and Spending Clauses.  Thus, the failure of this amendment was part of the triumph of living constitutionalism.

The support that the proper originalist interpretation of the Constitution provides for the amendment process is made even clearer by the ERA, which Mark mentions. In our view, the failure of the ERA was closely connected to the excesses of the Warren Court.  Even many of those who thought that equality for women under law should be guaranteed by the Constitution were understandably worried that the Supreme Court might use the amendment as blank check for more social engineering, like unisex bathrooms and forcing women into combat roles. Thus, it was the fear of the pervasively non-originalist legal culture at the time that contributed to the ERA’s defeat.

Accordingly, it is not that the difficulty of amending the Constitution demands living constitutionalism, but instead that living constitutionalism makes the amendment process more difficult and at times irrelevant. Why bother with an amendment if your party can steer the Court to give you more of your program than you could obtain by compromise with and persuasion of your fellow citizens?

Our amendment process cannot be effective without originalism, and originalism cannot be attractive without an effective amendment process.  As Mike and I conclude, originalism and the amendment process march under the same banner. And that banner reads: “Here the people, not the elite justices, rule.”

Reader Discussion

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on September 14, 2017 at 10:26:48 am

Excellent.

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Mark Pulliam
on September 14, 2017 at 12:06:29 pm

JMc: "It is true that most people today would favor the amendment banning child labor which passed Congress, but did not succeed at the ratification stage. But we argue that the amendment ultimately failed because Franklin Roosevelt decided not to push it: the amendment was too narrow an expansion of federal power for his purposes of centralized economic control. Instead, he appointed justices who were willing to update rather than follow the original meaning of the Constitution and so provided the federal government with almost plenary power of economic regulation under the Commerce and Spending Clauses. Thus, the failure of this amendment was part of the triumph of living constitutionalism."

Apart from the analysis being ahistorical, the COTUS Mark and John envision would become an unwieldy and prolix Field Code. California is THE object lesson in why this is no way to run a railroad.

Judging from the state convention debates in Elliot's, it appears that the Commerce, Spending, and N/P Clauses were read as and intended to be broad. Broad enough for the New Deal? Probably. But as l have pointed out otherwise, the New Deal could have been enacted via treaty, if need be. The provincial notion that originalism precipitates Bastiat's wet dreams is a major conceit of conservatives, and a betrayal of originalist principles.

JMc: "The support that the proper originalist interpretation of the Constitution provides for the amendment process is made even clearer by the ERA, which Mark mentions. In our view, the failure of the ERA was closely connected to the excesses of the Warren Court. Even many of those who thought that equality for women under law should be guaranteed by the Constitution were understandably worried that the Supreme Court might use the amendment as blank check for more social engineering, like unisex bathrooms and forcing women into combat roles. Thus, it was the fear of the pervasively non-originalist legal culture at the time that contributed to the ERA’s defeat."

This analysis borders on the giggle-worthy. While two grifters (Phyllis Schlafly and Jerry Falwell) managed to scare the people in backwoods Southern States into defeating it, there are two ways to skin a cat. Ever hear of Title lX? Virtually everything the ERA was intended to do was implemented via statute. All the ERA example really does is demonstrate how broken our amendment process is--a small sliver of our population has an effective veto power over Amendments, which is shockingly inequitable.

JMc: "Why bother with an amendment if your party can steer the Court to give you more of your program than you could obtain by compromise with and persuasion of your fellow citizens?"

This lament would be more credible if the JMcs of the world acknowledged that the Rehnquist and Roberts Courts have been far more activist then the Warren Court on its worst days. Judicial activism is a bi-partisan sport; review Alden v. Maine and Shelby County v. Holder (there are ~100 examples) and get back to me.

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LawDog
on September 14, 2017 at 20:40:53 pm

Just putting this out there for anyone who may wish to comment;

I recently read a paper by Richard M Re at UCLA Law School, titled, "Promising the Constitution". (Northwestern University Law Review > NULR > Vol. 110 > Iss. 2 (2016) )

Link Here: http://scholarlycommons.law.northwestern.edu/nulr/vol110/iss2/1/

Excerpt: As old officials give way to new ones, the overall constitutional order gradually evolves, with each official bound to a distinctive promise from the recent past. This process of gradual change is normally invisible because the oath also incorporates publicly recognized rules for legal change, or “change rules,” such as the Article V amendment process."

I find the notion interesting, but would like to here the opinions of the Constitutional scholars . Thanks in advance.

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Paul Binotto
on September 15, 2017 at 14:05:32 pm

I strongly disagree. A consistent push for originalism will require, at some point, an amendment of Article V to make amendment easier. Scalia is on record as supporting the basic idea here, and as far as I am aware the best overall case for this has been made by yours truly, in my case for decreasing the required thresholds from 2/3 and 3/4, to 55% and 2/3, an amendment which I title the Responsibility Amendment. Time to remove this (poor) excuse for resorting to Living Constitutionalist theory, and time to force the public to take greater responsibility for the maintenance of their Constitution.
https://www.firstthings.com/blogs/firstthoughts/2013/08/mark-levin-meet-herbert-croly

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Carl Eric Scott
on September 15, 2017 at 16:31:51 pm

"Here the people, not the elite justices, rule."

Oh, come on. That's not how American government works, nor is it how American government is supposed to work.

The people elect representatives. The representatives rule. If the people don't like how the representatives rule the people replace said representatives, but only after the damage has been done. The damage is generally much harder to undo than it was to do, so the damage tends to accumulate over time.

In my work-a-day world as a software engineer we recognize that when software has been coded and released to the public and it is bad software, fixing it takes something on the order of 65 times more effort to correct than would have taken to get it right the first time. Government systems no doubt operate similarly. Fixing bad law takes substantially more effort to fix after it has been enacted than it would have taken to implement correctly in the first place.

Programmers and lawmakers don't like spending time fixing problems because that isn't the way to get positive recognition. You get positive recognition by implementing new stuff and letting someone else fix the problems with it afterwards. Systems with a lot of bad problems tend to not get fixed. Eventually the system has to be completely replaced.

Originalism will not change that. The Framers didn't always know what they were doing. Just because they provided some mechanisms for fixing bad government and law that doesn't mean that those mechanisms will be effective. Since we have those mechanisms and government problems are not getting fixed I think we can safely assume that the mechanisms are not working, and then go forward from there.

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Scott Amorian
on September 15, 2017 at 16:33:59 pm

Also, John, if you don't mind, you haven't written about crypto currency in a while. With the crypto markets in the financial news so much lately I was hoping for more thoughtful insights from yourself.

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Scott Amorian

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