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.