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)
1933: 20 and 21
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.