Balkinization  

Wednesday, March 03, 2004

JB

Does Reverence for the Constitution Argue Against Amending It?

Should we refrain from amending the Constitution because it's sacred and the Framers knew what they were doing? I don't buy this particular argument against the Federal Marriage Amendment at all. I agree with Jonah Goldberg that this sort of claim is a non-starter, especially if you believe in a "living Constitution" that responds to the times.

Indeed, the argument for amending the Constitution through Article V is at least as strong as the argument for allowing Article III judges to change constitutional meanings through interpretation, because Article V itself specifies a democratic process for amendment. Note that this process, strictly speaking, is not democratic in the same way that majority rule is: It actually requires a supermajority, so a very large number of Americans can support a change in the Constitution and it still won't become law under Article V. (The best example of this is the Equal Rights Amendment whose basic call for sex equality I would assume an overwhelming number of Americans now support. Instead, these norms entered the Constitution through judicial interpretation by Article III courts in the 1970s). But we probably can say that amendments that do satisfy the very stringent requirements of Article V probably do reflect overwhelming popular agreement. (Except, that is, for the Twenty Seventh Amendment, whose ratification over a two century long period is deeply suspect).

So the best argument against the FMA is not the one I hear banded about these days-- that we shouldn't tinker with the Constitution. The best argument is that we shouldn't tinker with it in this particular manner. We shouldn't tinker with it in ways that reflect a parochial concern with a particular substantive issue that is also, in my opinon, unjust, and we certainly shouldn't tinker with it in ways that we may be sorry about later on.

Popular attitudes about homosexuality are currently in flux. Attempting to lock in a particular view about homosexuality now would be just as unjust as an amendment that said the following in the wake of the Court's 1954 decision in Brown v. Board of Education:

Neither this Constitution, nor the Constitution of any State, shall be construed by any state or federal judge to prohibit laws preventing or regulating comingling, marriage, or sexual relations between persons of different races

I suspect that such an amendment might have had a decent shot at passage in 1954. Most people, even in the North, thought that interracial marriage was not a civil right, and certainly they believed that sex between people of different races outside of marriage was not a civil right. However, by 1967, the Supreme Court, reflecting a revolution in attitudes about racial equality, did hold that laws prohibiting interracial marriage violated the Equal Protection Clause of the Fourteenth Amendment in a case called Loving v. Virginia. (The same case, by the way, held that marriage was a fundamental right protected by our Constitution). And the point is that Loving was not opposed to emerging norms about racial equality. Rather, it reflected them.

This is the problem with the Federal Marriage Amendment. It wants to hold off a change in attitudes that the Religious Right sees as coming.

Does this mean that I think that amending the Constitution is a bad thing? Absolutely not. I think that Constitutional amendments are important, especially with respect to structural questions that cannot be addressed by courts. An example which my friend Sandy Levinson has suggested are the rules regarding succession in office when large numbers of members of Congress are incapacitated, for example, as a result of a bomb or a terrorist attack. The Twenty Fifth amendment takes care of the problem for the President, but it does not deal with the analogous problem for Congress. Congress should have the power to pass the equivalent of a succession in office act to deal with this problem. But the Constitution as currently implemented does not permit it. We should also amend the Constitution to allow non-native born citizens to run for the Presidency. I also strongly believe in Constitutional amendments that secure basic rights of citizenship, like the Thirteenth, Fourteenth, Fifteenth, and Nineteenth Amendments. I don't believe that the Federal Marriage Amendment secures basic rights of citizenship. To the contrary, it seems to me that it wipes the possibility of such rights for gays off the table. So my objection is not that you shouldn't ever amend the Constitution because it's perfect the way it is. It is that you should do so only for the right reasons. I oppose the FMA because it is not for the right reasons.

There are a couple of things I do disagree with Jonah Goldberg about, however. At one point he says:

By the way, I'm singling out liberals for a reason. Conservatives who oppose amending the Constitution are against the sort of judicial activism that rewrites the meaning of the Constitution while leaving the text unchanged. There's nothing inconsistent about being against judicial activism and against "tinkering" with the Constitution through the amendment process. You can't say the same about liberals who see the Constitution as if it were Felix the Cat's magic bag from which they can pull out any public policy they want.

Like many people, Jonah fails to realize that liberals have no monopoly on judicial activism. Conservatives, if anything, have a much longer history of reading their values into the Constitution. Here are only a few examples: The decision in Dred Scot v Sanford striking down the Missouri Compromise and holding that blacks could never be citizens, the gutting of the Fourteenth Amendment's Privileges or Immunities Clause in the Slaughterhouse Cases less than five years after the Amendment was ratified; striking down the Civil Rights Act of 1875, which was passed by the very same Congress that passed the Fourteenth Amendment, in the Civil Rights Cases; the creation of the police power jurisprudence of the Lochner Era which selectively struck down labor laws that conservatives didn't like; striking down the federal income tax in the Pollock case; reading the words "other states" in the Eleventh Amendment to mean "other states or same state" in Hans v. Louisiana; the creation of the exception to Hans in Ex Parte Young when Hans turned out to prevent conservative judges from enjoining laws that were inconsistent with their laissez-faire values; the manufacture of federalism doctrines out of whole cloth in National League of Cities v. Usery; and, after National League of Cities was overruled, the creation of new federalism doctrines out of whole cloth to the same effect in Seminole Tribe and Alden v. Maine; the manufacture of the "congruent and proportional" test and its use to limit civil rights legislation in Kimel and Garrett; the continued development of commercial speech doctrine to limit government power to regulate advertising; and last but not least, the application of strict scrutiny to race conscious affirmative action in the face of evidence that the Fourteenth Amendment was not intended or written to enforce a colorblind Constitution.

All I can say to Jonah Goldberg is, Mr. Pot, Meet Mr. Kettle.

Here's the second thing I disagree with:

I bet it would be a lot easier to repeal a constitutional amendment than it would be to overturn, say, the constitutional requirement of providing criminals with Miranda warnings, which was simply invented by the Supreme Court. Meanwhile, amendments have been repealed and superseded by other amendments several times.

Actually, it's *much* easier to overrule a case like Miranda than to amend the Constitution to get rid of the Electoral College. All you have to do is win enough elections to appoint judges who will limit it in various ways That's what happened with Miranda, by the way. It's a shell of its former self, even as the Court reaffirmed it in Dickerson a few year's back.

What Goldberg doesn't account for is that the Constitution is continually being changed in little ways through judicial interpretations, both by the judges he likes and by those he doesn't like. Put enough of those changes together over time, and you can get significant effects. For example, in 1970 the Supreme Court held that voucher programs that let children of poor people attend parochial schools violated the Establishment Clause. By 1983, that holding had been seriously undermined, and by 2003, it was essentially overrule in Zelman v. Simmons-Harris. Indeed, the key issue now is not whether vouchers are constitutional but under what circumstances states can *refuse* to include religious schools in voucher programs. That was one of the issues that the Court effectively put off deciding when it handed down Locke v. Davey last week.

What caused the shift in doctrine from 1970 to 2003? Well, the Republicans won a lot of Presidential elections after 1968, they stocked the courts with conservative judges who read conservative values into constitutional doctrine, and the constitutional law we have today is the result of those changes.

The truth of the matter is, whether people like it our not, we have a two track system for changing constitutional meanings. Article V amendments, and Article III interpretations. Liberal judges and conservative judges alike engage in constitutional change through judicial interpretation. Although some judges say they are only following precedent or only following original understanding, that's just simply not true. They are using the modalities of precedent or history or text or structure in order to argue for their preferred vision of constitutional norms. (See my previous post on Scalia's jurisprudence for my discussion of how he selectively invokes original meaning and precedent to get where he wants to go).

The fact is, we are all living constitutionalists now; but only some of us are honest about it.



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