Thursday, September 10, 2015

Explaining the Rarity of Constitutional Amendments

by Michael Dorf

I recently participated in a discussion of various current proposals to amend the U.S. Constitution sponsored by the National Constitution Center (NCC). NCC CEO (and George Washington University law professor) Jeff Rosen posed questions for me and Cato Institute senior fellow Ilya Shapiro. The proposed amendments under discussion were: (1) permitting states to propose specific amendments rather than an open-ended convention; (2) eliminating birthright citizenship; (3) authorizing campaign finance reform by overruling Citizens United and related cases; (4) adopting an express right to vote with enforcement power in Congress; and (5) providing religion-based opt-outs from participation in same-sex marriage.

Although Ilya is a libertarian while I'm a progressive with civil libertarian tendencies, we agreed about much more than we disagreed about. Each of us thought that most of the proposed amendments under discussion were unnecessary, even if one accepts the normative framework of the people who are proposing them. One area of strong disagreement concerns an issue of historical causation. However, the disagreement was not apparent during the discussion, so I'll elaborate it here.

Relying partly on the work of University of Chicago law professor/political scientist Tom Ginsburg (e.g., here), I noted three inter-related facts about the U.S. Constitution: (1) Relative to other countries in the world, our Constitution is extraordinarily long-lived; (2) It has survived for so long despite massive social, economic, and other changes despite the fact that, by comparison with state constitutions and other national constitutions, the U.S. Constitution is very difficult to amend formally; and (3) the Supreme Court's flexible interpretation of the Constitution has served as a substitute for formal amendment, thus allowing the Constitution to survive without much textual change even as its implementation in practice has changed.

Ilya appeared to take issue with my claim that the U.S. Constitution is difficult to amend. From the 9:38 - 10:38 minute marks of the podcast, he said that the Constitution isn't supposed to be difficult to amend and that it has only been perceived as such since the New Deal, when the Supreme Court upheld "facially unconstitutional" laws that FDR and the New Deal Congress enacted. In his view, this was the birth of the living Constitution and the living Constitution has led the People to think that they need not and should not formally amend the Constitution.

Because of the format of the discussion---in which Jeff asked each of us specific questions rather than having us respond directly to one another--there was no opportunity for me to reply, so I'll take it here: Ilya's account is mistaken if intended to show that Supreme Court acquiescence in constitutional change without formal amendment during the New Deal has led to greater reluctance on the part of the People to adopt amendments--which is what he said he was showing with this tendentious account of the overruling of Lochner as a kind of betrayal of the "real" (libertarian) Constitution. But I am mostly not making a normative point. I wish to show here that Ilya simply has his facts wrong.

Here is a timeline of all constitutional amendments:

1789: Original Constitution
1791: Bill of Rights (1-10)
1797: 11
1804: 12
1865: 13
1868: 14
1870: 15
1913: 16
1913: 17
1919: 18
1920: 19
1933: 20 and 21
1951: 22
1961: 23
1964: 24
1967: 25
1971: 26
1992: 27

Looking over that list, one can see that it is simply false that there is greater reluctance to amend the Constitution in the period after the New Deal than before. Final Supreme Court acquiescence in the New Deal can be placed at 1937. In the 78 years since then, we have had six amendments, or one every 13 years. Setting aside the Bill of Rights, which was adopted practically alongside the original Constitution in order to make good on a promise to skeptical ratifiers, in the 146 years from 1791 to 1937, we had 11 amendments, or roughly one every 13 years, the same rate. Indeed, it looks like the rate of constitutional amendment was considerably faster in the roughly 35 years after the Court's acquiescence in the New Deal than in most periods before or since.

I agree with Ilya that Americans tend to think of the Constitution as too sacrosanct but I don't think that's what makes it so difficult to amend. The Constitution is difficult to amend because its super-duper-majoritarian amendment mechanism gives a small blocking minority great power. In eras of political polarization that will only allow housekeeping amendments. The Supreme Court's supposed sin of abandoning the "real" Lochnerian Constitution has nothing to do with it.

7 comments:

jed stiglitz said...

Thanks for the nice post. I agree with your factual point, but on another front I also find it a bit odd to suggest the Constitution was not living, or that people thought this to be the case, prior to the New Deal. Many of the twisting commerce clause cases, eg, come prior to the New Deal, as the Court grapples with a newly nationalizing economy. Indeed, I just happened across a 1907 YLJ article, the first sentence of which is "A constitution is a living instrument."

Eric Segall said...

I think I found the first person to ever use the phrase the "Living Constitution," in print and I wrote about that in Constitutional Commentary here: http://conservancy.umn.edu/bitstream/handle/11299/167780/15_03_Segall.pdf?sequence=1&isAllowed=y

It was in a 1900 law review article and the author's point was that the Constitution doesn't change absent amendment but facts do and therefore interpretations will have to change as well. Of course, and that is pretty much all you need to know about originalism.

Eric Segall said...

Not sure that link worked but it is as 15 Constitutional Commentary 411.

Joe said...

One of the "four horsemen" once noted:

"while the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world, it is impossible that it should be otherwise. But although a degree of elasticity is thus imparted not to the meaning, but to the application of constitutional principles, statutes and ordinances which, after giving due weight to the new conditions, are found clearly not to conform to the Constitution of course must fall"

https://www.law.cornell.edu/supremecourt/text/272/365

I think in practice the meaning does "vary" realistically - separate but equal & segregation is wrong can be explained away on some level, but at some point, simply put, a basic understanding changed.

But, at the very least, surely, changing facts (e.g., the understanding of sexuality) can result in changing results even if the basic principles hold. And, even the Committee of Detail back in 1787 purposely left things often open-ended, not specific like a set of regulations, with that in mind.

tjchiang said...

I'm doubtful that either one of you can "prove" the other wrong in any strong sense. The question is one involving a counterfactual: in a hypothetical world involving a Supreme Court that is less willing to acquiesce to constitutional change without formal amendment, would we have more formal amendments? The fact that the rate of amendment has not significantly changed before and after the alleged key event is relevant evidence tending to show the answer is "no," but hardly dispositive, because it assumes that the underlying demand for amendment remains constant throughout all of US history, which may or may not be true. For example, I can imagine an argument that, in a world where the Supreme Court is less willing to bless informal constitutional change, the Equal Rights Amendment would have passed. I don't mean that the counterfactual is necessarily the case that there is greater demand for constitutional amendment post-New Deal than pre-New Deal, but I don't think we can say one way or the other with much confidence.

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