Constitutional Change

By Eric Segall

Last week I attended an excellent conference at the University of Texas on "Constitution Making and Constitutional Change." Over 100 Law professors from over 20 countries attended, and I learned a lot about constitutionalism outside the United States. I’d like to thank Professor Richard Albert for putting together such a wonderful event.

For my part, I presented an abstract of a work in progress  with the thesis that if, like in the United States, judges are going  to play an important role in keeping a Constitution up to date, they should do so by placing their values and priors up front, not by hiding behind formalist legal doctrines that rarely generate the results in hard cases.

Article V of the United States Constitution requires super-majorities of the federal and/or state legislatures to formally alter the document, making amendments extremely difficult. There have only been 27 in our history,* and the first ten came soon after the original Constitution was ratified. The likelihood of super-majorities agreeing to such amendments in present-day America is slim, as opposed to many other countries with newer Constitutions which allow for amendments in more politically viable ways.

Our Constitution also includes important but imprecise constitutional language long used by judges to place substantial limits on the decisions of elected legislatures and other governmental officials. The difficulty of passing formal constitutional amendments along with this strong tradition of aggressive judicial review has led to society-changing constitutional changes implemented not by voters or legislators but by unelected, life-tenured federal judges. As retired Judge Richard Posner once argued “if you look at the entire body of constitutional law, that body of law bears very little resemblance to the text of the Constitution in 1789, 1791, and 1868. That’s the reality. The only useful way to advocate with regard to constitutional law is to give a good contemporary argument for or against a particular interpretation.”

Posner’s remarks are easily validated by the evidence. Constitutional protections for same-sex marriage and other gay rights, the existence of equal protection limitations on the federal government, equal rights for women, and other major constitutional changes and developments did not come about through constitutional amendment but by Supreme Court decisions. I have long argued that this is not a good way for constitutional change to occur but that is not the point of this post. Instead, the point here is that such change is inevitable absent a strongly deferential system of judicial review, which the Supreme Court has not employed in well-over one-hundred and fifty years and is unlikely to adopt anytime soon.

Even most Originalists accept the idea that the Justices should update the Constitution to address legal, political, technological, and cultural changes (something so-called Living Constitutionalists have long argued for). For example, as I've written here before, Professor Lawrence Solum has said that the doctrine of “original public meaning can give rise to different outcomes given changing beliefs about facts…. [Originalism] does not require constitutional actors to adhere to false factual beliefs held by the drafters, Framers, ratifiers, or the public.” The author of a book defending Originalism, Ilan Wurman, wrote that, “Originalists recognize that original meaning often requires that the application of the text evolves as modern circumstances evolve.”

Given the inevitability of major constitutional change in the United States being created by Court decisions based on modern values, not formal amendments, the Justices should more directly debate the actual consequences of their decisions and the personal value judgments that underlie their conclusions. In a society where unelected, life-tenured judges routinely usher in new eras of constitutional rights and limitations, we should demand they honestly and transparently explain and justify those judgments. Sadly, the United States Supreme Court is nowhere near providing such truthful explanations for its decisions, which is a poor way for constitutional change to occur.

If, to provide just these three examples, Georgia is prevented by the Justices from outlawing abortions, and Chicago from outlawing handguns, and Illinois from requiring its public workers to pay union dues, the least the Justices should do is debate openly the conflicting moral, political, and societal values at stake. In most constitutional law decisions, however, the Justices are in effect making all-things-considered decisions. They should do so openly and transparently, or not at all.

*Postscript by blog editor Michael Dorf: Prof Segall refers to 27 amendments. In a Verdict column and two follow-up posts here on the blog later this week, I shall discuss the implications of the difficulty of amending the US Constitution for the question whether Virginia's ratification of the Equal Rights Amendment will make it the 28th Amendment when, by its terms, it would become operative in two years, and if so, whether that will change constitutional law. Stay tuned!