The restrained vision of the federal judiciary that has dominated the jurisprudence of right-leaning American legal theorists and lawyers is under fire.
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.”