The Costs and Benefits of Constitutional Change

Andrew Coan

How should we balance the costs and benefits of sweeping constitutional change? This is the deep question raised by critics who argue that the Supreme Court is changing too much, too quickly. 

Every sensible argument for gradualism must acknowledge that the values served by gradualism—whatever they may be—are not the only ones that matter. At least in principle, those values can always be counterbalanced or overridden by other values. This reality creates an ever-present temptation to embrace a gradualism of convenience: The Court should move slowly in dismantling decisions the critic approves, but quickly when dismantling those that the critic disapproves. This temptation, in turn, creates understandable suspicion on the part of those whom gradualism urges to slow down and proceed more incrementally. Gradualism, from this vantage point, smacks of sour grapes.

On the other hand, the necessity of balancing gradualism against other values also offers a potentially persuasive response to the charge of sour grapes. The costs of sweeping constitutional change can constitute an important reason for objecting to the Supreme Court’s decisions even if those costs are not the only basis for the critics’ opposition—and even if the critics might believe those costs worth bearing in some other context for some other set of constitutional goods. 

To make the point concrete, the costs of upending abortion rights, affirmative action, and important elements of the modern regulatory state all at once might be a substantial and important reason to proceed with greater caution. But whether those costs are a decisive reason will depend on the countervailing benefits, if any, of aggressively pursuing these results. Views on this question will predictably diverge along ideological lines, even among interlocutors operating entirely in good faith.  

I explain further in this new paper.