Along with Michael Rappaport, I participated in Michael McConnell’s “Big Fix” conference, held at Stanford Law School this past week. “Should We Amend the Constitution?” was the subtitle of the fun event. You can talk me into that, provided law profs don’t get to vote. A dismaying number of amendment proposals aimed to Europeanize the U.S. Constitution (for example, by importing the European and Canadian courts’ “proportionality” tests into our ConLaw, which I had thought could not get any worse). Others sought to make the republic yet more “democratic”—an endeavor that for n reasons, some ably stated by Brother Rappaport, merits firm resistance and, in the event of success, a bulk purchase of OxyContin.
A short while ago, I wrote a post advocating that we amend the Constitution to eliminate lame duck pardons. While such a reform might seem small, it would be beneficial, it might secure the bipartisan support necessary to enact an amendment, and it would revive the moribund amendment process which is necessary to a beneficial originalism. But having an idea about what an amendment should do and writing the language of that amendment are two different things. Stephen Sachs, an originalist from Duke Law School, saw the post and tried his hand at drafting an amendment. Steve has both more taste…
I believe that the constitutional amendment process is essential to originalism and to a desirable constitutional law. One of the most disturbing things about recent generations is that no constitutional amendment has been proposed and ratified since the 26th Amendment guaranteeing the right to vote to 18 year olds was enacted 1971. (The 27th Amendment was proposed in 1789 and ratified over two centuries, receiving its last state vote for ratification in 1992). One result of this failure to employ the constitutional amendment process is that the process is atrophying. As a matter of political psychology, people do not think enough…
On Monday Senator Harry Reid introduced an amendment, which would permit both Congress and state legislatures to prohibit the use of resources for political speech at election time. The Republicans did not vote to filibuster it but instead by a substantial majority agreed to open debate. Senator Reid then complained that Republicans were trying to “stall” the Senate from getting to other items on his agenda. Washington has reached a new high in legislative hypocrisy: criticizing the opposition for wanting to debate an amendment that you brought to the floor!
The debate is scheduled to last the week. And nothing is more important than having a debate that brings us back to the consideration of first principles. Political theorists since Machiavelli have been absorbed by the problem of preventing the decay and corruption of the republic as its founding principles gradually recede from public view. The most important safeguard against such decline is the creation of mechanisms that naturally ventilate deep disagreements and renew the citizens’ appreciation of their republic’s first principles. Floor time for divisive constitutional amendments is such a mechanism and this one illustrates three first principles on which our two major political parties disagree.
I have written several posts on the constitutional amendment process, but I cannot let Eric Posner’s new piece for Slate magazine pass without comment. Eric’s piece is an excellent example of the conventional wisdom that the constitutional amendment process is too difficult – a wisdom that I believe is seriously mistaken.
Eric writes that “any proposal to amend the Constitution is idle because it’s effectively impossible” – because it is too difficult to amend the Constitution. But as I have argued before and with John McGinnis, the main reasons we do not see constitutional amendments are due to nonoriginalism. These reasons include:
1. It takes a consensus to amend the Constitution, and that consensus takes time to develop. But nonoriginalist courts judicially update the Constitution before that consensus has enough time to develop.
2. Some amendments are attractive only if the Court can be trusted to enforce them as written. But if the Court is nonoriginalist, then people may not trust the Court to enforce the amendments and therefore may not want to give the Court more power.
3. Since constitutional amendments are hard to pass, interest groups will often seek alternatives that are easier to achieve, such as packing the courts with people who will rewrite the Constitution to further the group’s vision. Once again, this will only happen if nonoriginalism is allowed.
4. Constitutional amendments often require compromises in order to secure a consensus. But if there are alternative mechanisms, such as judicial updating, interest groups will choose not to compromise and instead will seek to have judges appointed who share their vision.
I have just returned from the annual confab of the Midwest Political Science Association. The MPSA is not my favorite haunt (the folks there tend to like putting the science into political science), but I was delighted to be part of a panel discussion of the important new book by Emily Zackin, Looking for Rights in All the Wrong Places.
My new book, Originalism and the Good Constitution (coauthored with John McGinnis), is now available at Amazon.com (although the Harvard University Press website lists the publication date as November).
The book offers a new normative defense for following the original meaning of the Constitution. The primary argument is that we should follow the Constitution’s original meaning because the Constitution is a good one that protects individual rights, democracy, and limited government. But the goodness of the Constitution is based not just on our evaluation of the Constitution, but also on the fact that it was enacted through a beneficial supermajoritarian enactment process that generally leads to desirable constitutional provisions.
While the book offers this new argument, it does quite a bit more, exploring various issues of originalism based on the book’s overall theory. First, the book offers a new theory of interpretation, called original methods originalism, which argues that one should interpret the Constitution based on the interpretive methods that the enactors would have deemed applicable to the Constitution. This interpretive approach is defended both as the most accurate way of determining the Constitution’s meaning as well as the method that will lead to the best consequences.
Akhil Amar emails to note a pertinent discussion of the issue from his book America’s Constitution: A Biography:
In the 1798 case of Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378, the Court endorsed the permissibility of the practice that had already taken root, under which proposed amendments were not submitted to the president for his signature or veto. Two main theories have been offered to support this result. Some have argued that the two-thirds rule of Article V should be read as creating an implied exception to the usual rule of presentment set forth in Article I, section 7. On this view, since any proposed amendment has already achieved a two-thirds vote of each house, presentment is unnecessary. Others have argued, more directly, that Article V created its own separate higher-lawmaking track above and beyond the presentment clause rules for ordinary Article I lawmaking. On this view, Article V did not envisage any role for a presidential signature or veto in the case of an amendment proposal emerging from a duly called proposing convention; and an amendment proposal made by Congress should stand on the same footing. In 1861, James Buchanan added his name to the Corwin Amendment (which was never ratified), and four years later Abraham Lincoln appended his own signature to the Thirteenth Amendment. On February 7, 1865, the Senate resolved that Lincoln’s signature had been unnecessary and “should not constitute a precedent for the future.”
Apart from the history, one question is whether the original meaning supports this practice. Although I have written several articles on Article V — e.g. see here, here, and here — I have not studied this issue at length. Still, my take is that presentment is required, although I prefer the Constitution without that requirement.
First, Article I, section 7, clause 3 appears to make clear that the proposed constitutional amendments must be presented to the President. It says