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.
In a recent post on Law and Liberty, Mark Pulliam lambasted the idea of a more “rigorous standard of judicial review, across the board, when laws are challenged” called “judicial engagement.” He claims that those of us who advocate judicial engagement presume that judges are untainted by bias or personal predilections whereas they “are just government officials who wear robes, no different (and certainly no more noble or wise) than any other functionary of the state.”
Judicial engagement does not make any such presumption. Judges are no different from any other people. But the office of a judge is different. A judge has different incentives than a legislator because of the nature of his or her office, which renders him or her less vulnerable to manipulation by interest groups or political pressure.
I am excited to announce that Mark Pulliam will blog for us in July as Michael Greve returns to Germania for the month. Mark's first contribution to the site was on race and cronyism at the University of Texas. I think it's safe to assume that he'll have more to say on this topic. Mark is a writer living in Austin. After graduating from the University of Texas School of Law, he clerked for Judge Walter Ely on the Ninth Circuit Court of Appeals and then practiced law for 30 years with the firm of Latham & Watkins, specializing in labor…