If all you want for Christmas is constitutional self-government, here are some ideas that would make the republic merry and bright—if only in our dreams.
Unconstitutional Constitutional Amendments
Throughout the world, constitutional courts have asserted ever increasing powers. One of the most significant areas involves the claimed judicial power to declare otherwise perfectly constitutional amendments to be unconstitutional, because the judges believe they are not in accord with constitutional norms. This recent article describes the issue:
Courts around the world—from Bangladesh to Belize, India to Peru, Colombia to Taiwan— have either asserted or exercised the power to invalidate a constitutional amendment. Courts have drawn from textually-entrenched rules and extra-constitutional norms to declare that procedurally perfect amendments are nonetheless substantively void. Scholars have in recent years taken a keen interest in this phenomenon, producing a burgeoning literature in public law seeking both to explain and justify the judicial doctrine of unconstitutional constitutional amendment. The dominant view in the field is overwhelmingly favorably inclined toward the idea that courts should have the power to invalidate a procedurally-perfect amendment they deem unconstitutional, even in cases where the codified constitution does not entrench a formally unamendable rule. There are relatively few exceptions to the global chorus of voices in support of the extraordinary judicial power to invalidate constitutional amendments. The dearth of contrary views reflects the normalization of the phenomenon Ran Hirschl has identified as the “judicialization of mega-politics,” a now-common phrase referring to the most important matters of political significance that constitute, define and divide polities—and that are now often adjudicated by courts. National courts today decide a host of decidedly political questions: the winner of presidential elections, the legitimacy of political parties, and the self-determination of a people. Against this backdrop, invalidating a constitutional amendment is just par for the course [emphasis added].
Different constitutional systems throughout the world follow different principles – both as to judicial implementation and as to their framing. (For the argument that seemingly nonoriginalist methods in some foreign constitutions might actually be consistent with originalism, see here.) But to understand how outrageous such “unconstitutional” constitutional amendments might be under at least certain systems, let’s focus on the U.S.
The U.S. Constitution does prohibit certain constitutional amendments. For example, if an amendment proposed by Congress does not receive two-thirds of each house of Congress or is not ratified by three-quarters of the states, then it is invalid. Apart from such procedural infirmities, an amendment might be deemed substantively unconstitutional if it deprived a state of its equal voting rights in the Senate without its consent (which is explicitly protected by Article V of the Constitution).
But let’s imagine that an amendment passed that complied with the textual provisions of the Constitution, but a court declared it unconstitutional as inconsistent with the “underlying principles” of the Constitution or its design. For example, imagine that congressional term limits were enacted, but the Supreme Court said that it was unconstitutional because it was inconsistent with the democratic principles of the Constitution.
Or imagine that the Democrats enacted an amendment to overturn Citizens United, but then the Supreme Court declared it unconstitutional on the ground that it was inconsistent with the First Amendment. This might seem like a strange position for liberal nonoriginalists, but liberal law professors have over the years argued that amendments inconsistent with the First Amendment might be unconstitutional – and thus the only thing strange here is that a traditional liberal position would now be used to combat a liberal initiative.
In my next post, I will discuss the harm that such extra constitutional actions can have on a constitution.