Sandy Levinson has once again written a piece, The Imbecilic Constitution, about how bad the U.S. Constitution is. Since I believe that the goodness of the Constitution is a powerful reason for following it, I strongly disagree. I have critiqued Sandy’s claim’s before.
But if one must choose the worst single part of the Constitution, it is surely Article V, which has made our Constitution among the most difficult to amend of any in the world. The last truly significant constitutional change was the 22nd Amendment, added in 1951, to limit presidents to two terms. The near impossibility of amending the national Constitution not only prevents needed reforms; it also makes discussion seem futile and generates a complacent denial that there is anything to be concerned about.
It was not always so. In the election of 1912, two presidents — past and future — seriously questioned the adequacy of the Constitution. Theodore Roosevelt would have allowed Congress to override Supreme Court decisions invalidating federal laws, while Woodrow Wilson basically supported a parliamentary system and, as president, tried to act more as a prime minister than as an agent of Congress. The next few years saw the enactment of amendments establishing the legitimacy of the federal income tax, direct election of senators, Prohibition and women’s right to vote.
Sandy assumes there are no amendments in large part because it is so difficult to amend the Consitution. I disagree. As I wrote previously in commenting on Sandy, a significant part of the problem is that the nonoriginalist Supreme Court judicially amends or updates the Constitution, so that the country never really has the opportunity to formally amend it:
Many people point to the fact that so few amendments have passed, as evidence of its excessive stringency, but I place the responsibility not on the amendment process, but on nonoriginalism. Every time an amendment might have passed – for example, during the New Deal, during the environmental decade of the 1970s, the proposed ERA – the Supreme Court has stepped in to “update” the Constitution, thereby superseding the amendment process. If we had an originalist Supreme Court, I predict that many more amendments would have been enacted.
The amendments that Sandy mentions — the federal income tax, direct election of senators, Prohibition and women’s right to vote – were enacted at a time before there was nearly as much nonoriginalism. In our day, everyone one of these amendments, except for the direct election of Senators, would likely have been accomplished by judicial amendment. Why pass the 19thAmendment giving women the right to vote? Just hold that it is covered under the Equal Protection Clause.
I agree with Sandy that our Constitution has some problems (although not the ones that Sandy identifies). But I don’t think the strictness of the amendment process is one of them. That process would work much more effectively if the Supreme Court got out of the game of judicially amending the Constitution.