Constitutional Change and Continuity

We are grateful for the three interesting responses to our essay on constitutional amendments. Each response raises significant issues.

We appreciate Greg Weiner’s kind compliments on our essay. We agree with him that excessive veneration of the Constitution and its founders may prove an obstacle to the amendment process (although we do not believe it is the principal culprit). In our work, we show that it is the super-majoritarian procedures for creating the Constitution, not the identity of its creators, which are principally responsible for its beneficence. Thus, today’s citizens are capable of making wise additions to the original design so long as they too employ the sound constitution-making process of Article V. We would note, however, that judicial updating discourages careful public scrutiny of the Constitution’s defects as they are discovered over time and thus may contribute to viewing the Constitution with rose-colored glasses rather than a gimlet eye.

We also agree that constitutional amendments are not necessary to ratify all precedents. As we have described in other work, a legal system must recognize the reality that some mistaken decisions have either created so much reliance or have so much support that they could pass as amendments and therefore should not be overruled. They will thus remain governing law even in the absence of an amendment. While Weiner’s particular suggestion that amendments are necessary only in cases where the meaning of the constitutional provision to be changed was clear, not when they have been “liquidated” by practice and precedent is interesting, we do not entirely agree with it. It is true that liquidated provisions have the benefit of practice and tradition in their favor, but not all traditional practices should be retained. We do believe, however, in a precedent rule that captures some of Weiner’s concerns here. That precedent rule would protect venerable cases that have been repeatedly affirmed and that are not clearly erroneous.

We also welcome Sean Beienburg’s extension of what he too regards as a generally sound analysis. In particular, Beienburg is correct to regard as overblown fears that a convention called to consider a specific amendment might become a runaway convention that could successfully replace the entire Constitution. Such a bait and switch would be widely seen as a democratic outrage and would likely founder on the substantial consensus required by Article V. But we would add that the fear of a runaway convention is nonetheless substantial and has some justification. People are rationally fearful of having to engage in a political fight to defeat the ratification of a change that might undermine our Constitution.  

We also agree with other aspects of Beienburg’s discussion. He is correct that some Democrats have been more sympathetic to originalism historically than either Franklin Roosevelt or most modern progressives. We would emphasize that persuading some modern Democrats to be originalist is extremely important, since originalism will be most successful if it is held by people in both parties. We also agree with Beienburg that state constitutional amendments should be employed both to protect people’s rights and preserve federalism.  

Sanford Levinson has been a challenging sparring partner for our entire careers and is no less so here. But we will mirror the spirit of his contribution by noting where we agree. We do not agree that the formal requirements of the constitutional amendment process make it almost impossible to pass amendments. Hugely important provisions, like the 16th, 17th, and 19th amendments, have been added to the Constitution at a time when the United States had approximately as many states as it does today. Rather, the main problem is that the Court has engaged in judicial updating which has crowded out and hamstrung the amendment process.

Marshall’s commitment to a static rather than evolving meaning encourages citizens to amend the Constitution when its provisions become truly outdated.

But we do agree that Article V might be usefully reformed. In particular, we certainly think that it should be clarified to make pellucid that runaway conventions are not permitted and thus encourage state-called conventions for specific amendments. We might also be open to reducing somewhat the requirements for ratification, perhaps substituting two-thirds of the states for three-quarters at the final stage of Article V, although based on history that is not likely to have much effect.

We also agree with Levinson’s claim that Congress and the President have engaged in departures from the Constitution’s original meaning. In fact, we have recently written a paper that argues that both presidential usurpations and Congressional delegations to the President that do not accord with the original meaning of the Constitution have led to disastrous results in terms of political polarization.

But it is important to set out our most important disagreement—Levinson’s enlisting of Chief Justice John Marshall’s statement that a constitution “designed to endure” must be “adapted to crises in human affairs” in the cause of living constitutionalism—because we believe it is a not uncommon error of modern constitutional theorists. It deserves a full refutation. Consider the full context of Marshall’s discussion:

The subject is the execution of those great powers on which the welfare of a nation essentially depends. It must have been the intention of those who gave these powers, to insure, as far as human prudence could insure, their beneficial execution. This could not be done by confiding the choice of means to such narrow limits as not to leave it in the power of Congress to adopt any which might be appropriate, and which were conducive to the end. This provision is made in a constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs. To have prescribed the means by which government should, in all future time, execute its powers, would have been to change, entirely, the character of the instrument, and give it the properties of a legal code. It would have been an unwise attempt to provide, by immutable rules, for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur. To have declared that the best means shall not be used, but those alone without which the power given would be nugatory, would have been to deprive the legislature of the capacity to avail itself of experience, to exercise its reason, and to accommodate its legislation to circumstances.

While Marshall certainly recognizes here the problems of allowing future decision makers to respond to new circumstances, his argument is not that the Constitution should be adapted to mean whatever those future decision makers believe it should mean. Instead, he argues that this problem of anticipating future circumstances requires that Congress be given broad authority so that it can choose among the means.

Moreover, even if one were to interpret the language as allowing Congress to adapt the Constitution to future circumstances, it does so only in a narrow way. Congress might have the power to adapt the means to future circumstances, but it clearly does not have the power to change the meaning of the ends. While Congress can select new means to regulate commerce among the states, it cannot change the meaning of regulating commerce among the states.

The interpretation of Marshall’s opinion as embracing a broad but static meaning of Congress’s powers also has the advantage of rendering this decision consistent with his other opinions. Marshall’s discussions of both constitutional and statutory interpretation in such cases as Sturges v. Crowningshield read like textualist originalism. It would be incongruous for McCulloch to be voicing a different view. Finally, it is significant that the view that McCulloch endorsed living constitutionalism was not followed by the courts at the time. During the nineteenth century, this quote was never cited to support the view that the meaning of the Constitution could change over time.

The important point for the amendment process is that Marshall’s commitment to a static rather than evolving meaning encourages citizens to amend the Constitution when its provisions become truly outdated. The Framers did intend the Constitution to endure and Article V is an important mechanism for assuring that durability.  

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