Balkinization: Understanding Informal Constitutional Change

Understanding Informal Constitutional Change

Stephen Griffin

In my last post, I suggested that in order to understand how constitutional change in the U.S. has happened, we need to move away from the simple model that assumes uniform amendment difficulty across time and appreciate the relevance of three inquiries: (1) how to conceptualize the baseline against which we measure subsequent constitutional change; (2) why it was exceedingly unlikely that change could occur through formal amendment, especially during and after the New Deal; and (3) the mechanisms of informal constitutional change. For me, at least, these are hard questions and I’ve spent a lot of time thinking about them over the years.

Unfortunately my answer to the first question runs the risk of being misunderstood given the debate between originalism and nonoriginalism. Consistent with what I’ve argued previously, the baseline for assessing constitutional change must be historicist. The self-understanding historical actors have at a given point in time such as 1789, 1801, 1861 and so on forms the baseline of constitutional meaning. This approach necessarily involves reconstructing the understanding or consciousness that prevailed during different historical eras. So the expectations of historical actors concerning constitutional meaning are relevant, similar to versions of originalism that use original expected applications. Hence the potential for misunderstanding. From my point of view, this does not involve endorsing originalism for the reasons stated in previous posts. As I argued in “Rebooting Originalism,” originalism typically uses historical evidence while trying to avoid a historicist perspective on the reality of change, a difficult feat. And originalism’s interest in historical evidence has often been overly selective. But this is not to deny that evidence about what the founding generation expected the Constitution to mean is relevant to achieving a historical understanding of constitutional meaning.

On the nonoriginalist side of the debate, some might wonder why we should limit ourselves to the historical understanding that prevailed at a given point rather than, say, aspirations about what the Constitution could mean in the future. I could say immediately that I don’t want to limit anyone, provided it can be shown that historical understandings changed at a later point (roughly the same point originalists make about formal amendments). The purpose here is to understand the process of constitutional change, especially informal change. I would argue that you can’t make progress unless you establish relatively firm historical baselines concerning constitutional meaning. As I’ve argued previously, some of these baselines are “hard limits” that go well beyond the “hard-wired” provisions of the Constitution whose meaning everyone concedes hasn’t changed. We should also recall that some of the most important baselines have to do with federalism and separation of powers, doctrines which are a mix of text and nontextual principles. My project is to show how these baselines were institutionalized in the process of state building and that this institutionalization can account for most of the informal constitutional change we have experienced.

Nonoriginalists or living constitutionalists tend to discount the problem of informal constitutional change. I’ve discussed two ways in which they do this – the sweeping “dead hand” argument and appealing to contemporary social acceptance as some sort of ultimate rule of recognition. If you reject these arguments but also think it’s implausible that Article V has handled the full load of legitimate constitutional change since 1789, you’re on the right path in my opinion. It’s a path of course well explored by Bruce Ackerman along with other scholars including yours truly.

By contrast, originalists tend to take the problem of informal constitutional change so seriously that they wind up condemning all significant developments outside Article V as illegitimate. If you find yourself arguing that it wouldn’t have been that difficult to make needed changes through formal amendments, you’re on this path. Randy Barnett takes this position in Restoring the Lost Constitution and it comes into especially sharp relief in John McGinnis and Michael Rappaport’s recent book Originalism and the Good Constitution. McGinnis and Rappaport argue that FDR could easily have asked for amendments to make the New Deal legitimate but instead proposed his controversial Court-packing plan. They attribute FDR’s decision to an “unwillingness to compromise” and a desire for “extraordinary powers.”

McGinnis and Rappaport are right to study the circumstances of FDR’s decision – it’s critically important to understanding not just constitutional change in the New Deal but why all subsequent constitutional change happened mostly through informal means. I laid out an argument to this effect in my 1996 book American Constitutionalism. But contrary to McGinnis and Rappaport, I think FDR had multiple good reasons for avoiding the amendment route. My argument still strikes me as sound so I’ll just summarize it here. The historical evidence shows that FDR did consider the option of proposing an amendment to validate the New Deal although it is true, as McGinnis and Rappaport note, that several of his key advisers were skeptical from the beginning. I argue that FDR did not pursue the amendment option for four reasons: (1) the DOJ found it difficult to draft an amendment with appropriate language given plausible practical considerations; (2) any approved amendment would still be subject to interpretation by a hostile Supreme Court; (3) the risk was too great that interest groups would focus on the minimum number of houses in state legislatures to obstruct an amendment (although state conventions could have been used, as the late David Kyvig pointed out); and (4) what I term the “reverence feedback effect” – the fact that by the 1930s the Constitution served as a focal point for national identity and amendments, especially ones as significant as the New Deal required, implied that our most revered document was somehow not up to the job. FDR knew that this would automatically give amendment opponents a powerful issue – one that, by the way, helped defeat the Court-packing plan itself.

McGinnis and Rappaport contend nonetheless that FDR could have gotten amendments through had he tried. But let’s note that not only is this very speculative, but that surely the best expert on the politics of the time had to be FDR himself. Although it would require a long argument to demonstrate this, I suspect strongly that originalists are asking too much of the political system when they in effect stipulate that normal politics must cease, give way to an effort at formal amendment when busy presidents cannot put all their other projects on the back burner while also staking their entire presidency (!) on whether an amendment is approved. Because that’s what it would come down to in practical terms. This suggests originalists lack a plausible account of what might be called fundamental amendment politics – how to assure savvy politicians like FDR that the amendment game is worth the candle.

To continue a bit more along this line, McGinnis and Rappaport criticize the alternative of using the Court to update the Constitution, but without giving a clear picture of why some FDR advisers like Felix Frankfurter thought this was legitimate. With much justification, Frankfurter and others believed that the Court had already interpreted the commerce clause in a broad way favorable to New Deal programs decades before the Great Depression hit. In their view, the Court was refusing to use existing broad precedents to validate the New Deal, instead relying on alternative precedents taking a more narrow view. Frankfurter and others likely didn’t see the matter as one of asking the Court to invent a new reading of the commerce clause, but simply follow existing precedent.

That brings me to the third inquiry, the mechanisms of change. In the absence of formal amendments, how are we to judge whether the New Deal (or any other period in American history) made lasting legitimate changes to the Constitution? Of course, if you buy Ackerman’s theory, you have a complex electorally-based procedure to assist you in making this determination. Although Ackerman’s solution to the problem of informal constitutional change has few takers, it is sometimes overlooked that rejecting his theory still leaves us with a mighty big problem. My approach focuses on asking whether the historical event in question, like the New Deal, made a permanent change to the structure of state institutions in a way that was inconsistent with the prior constitutional baseline. If permanent change occurs, at least of a certain significance, then you are looking at the equivalent of an amendment, an informal change to the Constitution. Obviously the Supreme Court could help cause or bless these changes and that would help confirm that the change is permanent. But it should not be assumed that the Court is always involved.

On the question of whether these changes are legally legitimate my approach is more complicated than Ackerman’s. Much like the political development scholars who talk of “intercurrence,” I think we have to allow for the possibility that we could have more than one constitutional order operating at a given time. But further, we need to allow for the possibility that these orders might be in considerable tension with one another. Ackerman calls for synthesizing later changes, such as Reconstruction and the New Deal, with the original constitutional order. I agree that the task of synthesis is crucial but it may fail, given the potential inconsistency. The result would be instability in politics, policy, and the constitutional order. In Long Wars and the Constitution I present an extensive analysis that war powers since 1945 is an example of this phenomenon.

This has been a long post, so I will close by reiterating that in my view theories of informal constitutional change are the best way to elaborate the intuition that we have a “living” Constitution. In contrast to conventional notions of living constitutionalism, however, such theories take the Constitution seriously as the supreme law of the land, thus creating the problem of explaining and accounting for informal constitutional change.

Looking back, I’ve covered the topics I initially set out in August so I’m coming to the end of these posts. I’ll try to do two more – one elaborating a bit on the idea that originalists are asking too much of the political system in terms of producing formal amendments when necessary and a concluding post dealing with the interpretation/construction distinction and some “meta” thoughts on how to go about criticizing views like originalism and living constitutionalism.

Posted 10:29 AM by Stephen Griffin [link]