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There’s No Such Thing as a Constitutional Free Lunch

Constitutions are supposed to create a framework of good government that cannot be easily upended. As Justice David Brewer remarked, the Constitution is supposed to protect “Peter sober from Peter drunk.” Or to use the canonical analogy from classical literature, a good constitution functions like the ropes that prevent Ulysses from throwing himself into the sea in response to the sirens’ call.

Frequently, however, the United States Constitution is criticized for its inability to accommodate the current preferences of the people. This “dead hand” critique is so-called because though the framers are long gone, the provisions that their generation ratified still  constrain the living. This objection, however, is in substantial tension with the purpose of the Constitution described above. A Constitution that can be changed as easily by majorities as easily as ordinary legislation would not create a stable framework or prevent rash actions.  A Constitution that steadies the present naturally rests on the hand of the past.

Thus, in its most general and usual form, the dead hand objection cannot be reconciled with republican constitutionalism, in which the people themselves are responsible for setting both the terms of fundamental law and ordinary legislation. To be sure, one can criticize the Constitution as being too resistant to change, or argue that the Framers had an undue advantage in creating our fundamental law because they were in the right place at the right time. These more nuanced objections depend on contingent features of the Constitution, like the particular degree of difficulty of the constitutional amendment process. Mike Rappaport and I reject these more specific claims in our recent book, Originalism and the Good Constitution, but they should not be confused with the simplistic dead hand objection.

Finally, it should be noted that the dead hand objection is sometimes made by those who nevertheless want justices to invalidate current legislation on the basis of rights that are not in the Constitution. The dead hand objection cannot play any logical role in justifying such judicial activism, because the dead hand complaint objects to the power of people in the past to bind the present by constitutional provisions, not to the power of those in the present to enact legislation. Indeed, those who object to the dead hand and want the living to rule democratically should be enthusiastic about allowing current majorities to have their way. But empowering majorities without constitutional restraint may permit drunken Peter to get us into a lot of trouble.

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