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.
Gordon Lloyd and Steve Ealy provide considerable material to ponder. The gist of their argument seems to be that rather than a Progressive political culture centered on quadrennial presidential elections and a governmental system featuring a considerable policy-making authority for both the president and the Supreme Court, we ought to prefer a “Madisonian” system. While…
It is subtle, or at least ironic, to use a term—“liquidate”—that has lost its original meaning to initiate a discussion of constitutional interpretation. Today the word still has a legal usage, referring to the payment and settlement of debts. The OED finds that meaning in English publications at the time that Madison and Hamilton employed…
Gordon Lloyd and Steve Ealy make a compelling case for liquidation, what they call “Originalism for the Living Generation,” as the most Madisonian means of settling constitutional meaning. Grounded as it is in Madisonian text and example, from The Federalist to the bank veto, the superb account Lloyd and Ealy offer is difficult to assail…
Six years ago, I wrote a post about how the Supreme Court’s website adopted the language of the Living Constitution approach. (I had been expanding on a post by Eugene Volokh.) It was curious that Justices Scalia and Thomas, as well as other fellow travellers of originalism, including the Chief Justice, would allow this language to continue. At the end of the post, I wrote that “it will be interesting to see whether this is changed and if so, how long it will take.” I just checked back to see whether there had been a change, but none has occurred. …
The conversation Richard Reinsch has sparked on constitutional liquidation is less about constitutional meaning than about the ultimate—note “ultimate”—authority to ascertain it. It is true, as Randy Barnett, among others, notes, that liquidation is a longstanding topic in originalist thought. But Reinsch suggests a new avenue, writing that republican politics bien entendu is the ultimate (see above) expositor of constitutional meaning and that this is true generally, not just in ambiguous or indeterminate cases.
Recently, I did a podcast interview on Constitutional Amendments and the Presidential Election. The interview, which was conducted by the National Constitutional Center, also featured David Strauss of the University of Chicago. Jeff Rosen, the President of the National Constitution Center and a Professor at George Washington Law School, was the interviewer.
It was an interesting discussion, which focused both on the constitutional amendment process and the impact that Hillary Clinton and Donald Trump might have on constitutional change if they were elected.
It was fun discussing these issues with David Strauss, because his views are so diametrically the opposite of mine. Many nonoriginalists resist being described as living constitutionalists. Strauss embraces it. He takes the opposite position of mine on a whole range of specific issues, which follows from his more general approach.
Strauss believes two main things about constitutional change. First, he claims that the actual practice of constitutional change occurs through judicial decisions and other governmental actions. In fact, he believes that constitutional amendments are largely irrelevant. Second, he believes that constitutional amendments are not generally a good way generally of changing the Constitution. The way that is actually practiced – where judges follow a common law like system – is better.
The Republicans are already backing off a bit or more from their hastily conceived policy of obstruction. There are loads of precedents for the obstruction, engaged in by both parties. Democratic whining about its deployment against President Obama’s nominee is as cheeky as it is hypocritical. Still, the higher road—the electorally more effective road, too—is perfect respect for constitutional forms.