Balkinization: The Structure of Constitutional Revolutions

The Structure of Constitutional Revolutions

Guest Blogger

For the Balkinization Symposium on David Sloss, People v. The Court: The Next Revolution in Constitutional Law (Cambridge University Press, 2025).

Deborah Pearlstein

Among its many contributions, David Sloss’s latest book is an early entrant in what I hope and expect will be a robust literature prompting us to think seriously and soon about what constitutional future Americans should seek when Donald Trump is no longer in the White House. The constitutional revolution Sloss proposes – assuming a shift to Democratic control of Congress and the White House in 2028 – is bold and optimistic. It includes among its central features a call for Congress to leverage the authority it gained with the United States’ 1992 ratification of the primary international treaty protecting civil and political rights (the International Covenant on Civil and Political Rights, the ICCPR). That treaty, if stripped of a congressional declaration making it non-self-executing, and combined with the Necessary and Proper Clause, would empower Congress to enact implementing laws vastly expanding the federal protection of individual rights well beyond what current constitutional doctrine would afford. To guard against the danger the current Supreme Court would quickly overturn any such legislation, Sloss equally calls for Court reform of a kind that has garnered bipartisan scholarly (and majority popular) support in recent years: the statutory adoption of term limits for the justices and 2 guaranteed appointments for each president. (To this, Sloss would add a jurisdictional restriction disabling the lower courts (and thus the Supreme Court) from reviewing the term limit legislation until the first two justices under the new term limits law have been appointed.)

Sloss’s plan is clever, innovative, and worth taking seriously in all its complexity. It evades the stark limitations that existing Court constructions of fundamental rights – the Court’s crabbed readings of the Fourteenth Amendment in particular – have placed on the possibility of more robust safeguards for a range of rights. And it would wisely avoid the particular form of constitutional hardball that a number of progressives now advocate – “packing” the Court with new justices for the sole purpose of overturning all the Roberts Court has done. As much as I have profoundly disagreed with this Court’s decisions across a wide range of constitutional questions, I also take seriously political scientists’ warnings that some forms of hardball risk eroding essential constitutional democratic norms further. Congressional court packing seems bound to produce an escalating cycle of retaliatory responses, placing the Court even more at the center of national political fights than it already is. Avoiding that path is to Sloss’s credit.

This is not to say Sloss’s plan is without hurdles – large ones – legal, conceptual, and perhaps above all political in nature. American political elite of both parties have become increasingly allergic to international law over the past thirty years (far longer in the case of Republicans), so much so indeed that the prospect of ratifying a new treaty – any new treaty, even one that enjoys overwhelming bipartisan support – has become a non-starter in the U.S. Senate. Republicans have long held resistance to international human rights law in particular as a core tenet of Party religion; even Democrats when in control of the executive branch have for decades embraced the view the ICCPR has no meaningful application to U.S. activities. Neither the American public nor (for the most part) the courts have any but the barest understanding of what international human rights law is; I can find no public opinion data on how many Americans have ever heard of the ICCPR, but given that roughly half of Americans can’t accurately name the three branches of our own federal government, I am not optimistic. All of which is to say the task of seeing Sloss’s plan from concept to implementation even through a Democratically-controlled Congress struck me as involving so monumental an undertaking of education, advocacy, coalition building, and persuasion – with enormous uncertainties at every stage, including conflicts over the substantially unelaborated content of ICCPR rights themselves – that I found myself anxious for his explanation of why this pathway to constitutional revolution is to be preferred to the equally daunting alternative route: Article V amendment. To this, the book offers a single sentence (without supportive footnote) by way of explanation: “Most observers agree that an array of political obstacles have made amendment through the Article V process virtually impossible.” (180)

Sloss’s plan relies rather, as he sees it, on a strategy of “informal” constitutional amendment – one capable of producing the kind of “landmark statutes” and “super-precedents” that Bruce Ackerman and others came to describe as the primary 20^th century method of constitutional amendment. Without pretending to engage the vast literature of critiques, responses, and elaborations of informal amendment mechanisms here, it is a pathway to constitutional revolution that strikes me as especially ill-suited to our times. If the current Court has proven nothing else, it is that no matter how “landmark” a law, no matter how “super” a precedent, it is susceptible of speedy (even gleeful) erasure by the placement of a sufficient number of radical justices among its members – as we are seeing with precedents like the New Deal-era Humphrey’s Executor, and statutes like the Civil Rights-era Voting Rights Act long thought part of a “second reconstruction.” The costs of such abrupt erasures have been large, not only in producing great uncertainty and instability, but to Court’s legitimacy itself. As it stands, the Court’s overtly partisan behavior, acutely visible even to the casual observer, has left us with a near-supermajority of Americans who already think that it is an institution mainly motivated by politics rather than by law. (And to be clear, the current Court’s behavior is not only demonstrably distinct from most of its twentieth century past, it has produced (albeit for opposite reasons) declining confidence in its role in American life among both Democrats and (to a different degree) Republicans alike.)

Doubling down on informal amendment as the sole viable structure of constitutional revolution guarantees that the Court will remain the primary venue for contestation over the most fundamental questions of American political life for the foreseeable future – a position that has placed it at the center of the country’s fiercest confirmation battles of the past half-century-plus, and has left not only the high Court, but I fear the courts more broadly, with far too few defenders at a time when the independent judiciary in the United States has never faced more sustained attack. To be sure, the current President himself leads those attacks, but he is not remotely alone in making them. There is today a generation of young Republican legal partisans coming of professional age at a time when Senator Cruz (among others) has made it mainstream to condemn judges who rule against the President as purveyors of “judicial tyranny,” and when the U.S. Deputy Attorney General has urged young lawyers to join the “war” against them. I fear our willing reliance on informal amendment – mastered most recently by what has been known as the conservative legal movement – has in part helped lead us to this place. And as we think about building/rebuilding a sustainable constitutional democracy going forward from here, it is a place I would just as soon start trying to leave behind.

Revolutions by their nature I suppose ask us to contemplate steps that seem inconceivable at the time they are first proposed. They are designed to use radical measures to bring about transformative change. But I would argue that both Sloss’s proposal and a successful Article V amendment campaign fall into similar baskets of inconceivability in our current political moment. Given that, and as between the two of them, it seems to me the latter approach not only holds out the prospect of doing less harm to the judicial institutions we badly need, it also holds out the prospect of re-incentivizing the kind of national, public, consensus-building, coalition-constructing work that stable democratic governance was designed to require. The lure of informal amendment has made it possible for generations of Americans to shirk this essential work, leaving the hardest questions to the lawyers (for better and often for worse), and along the way doing significant collateral damage to the idea that law is even modestly distinguishable from politics. I surely do not oppose legislative reform. But if we’re talking revolutions, now might be an important time to reconsider at greater length how impossible amendment really is.

Deborah Pearlstein is Director of the Program in Law and Public Policy and Charles and Marie Robertson Visiting Professor of Law and Public Affairs at Princeton University. You can reach her by e-mail at spiaplaw@princeton.edu.

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