Monday, April 25, 2011

Originalism and Article Five

Gerard N. Magliocca

I am neither an originalist nor a constitutional theorist, though I am often mistaken for one or the other. Nevertheless, there is something about the ongoing interpretative debate that strikes me as worth talking about.

There are, I think, two abstract questions that divide traditional originalists from living constitutionalists or Jack's version of originalism. (The concrete question that divides them is whether Roe v. Wade was correctly decided, but leave that aside.) One concerns the best mode of changing the Constitution. Everyone agrees that the Constitution must change from time to time, but how? Traditional originalists want that change to come exclusively through Article Five. That could be because they think that text is a better anchor for legal authority, or because they think that an amendment is more legitimate because many democratic bodies (and a supermajority in Congress) must vote yes. By contrast, living constitutionalists tend to think that text is a clumsy way of formulating legal principles as compared to judicial opinions, or that there is adequate democratic ratification from social movements that win several elections and place their sympathizers on the Court.

The other question is about how hard it should be to change the Constitution. A living constitutionalist thinks that Article Five makes it too hard. Traditional originalists do not agree. (Indeed, that may explain why they want major changes to go through that process.) Nevertheless, people spend relatively little time talking about how Article Five works and how it can be improved. I wonder whether traditional originalists would do better to concentrate on lowering the threshold for amendments instead of arguing about the alleged superiority of their method. And I wonder how living constitutionalists feel about interpretation in states where a majority can amend through a referendum. In other words, is their argument still about the use of text or not?

My contribution to this discussion, though I wasn't fully aware of it at the time, comes in two papers. One is in Constitutional Commentary and explores how people came to the conclusion that amendments are hard to ratify. People didn't always feel that way--the current view basically developed during the Court-packing crisis of 1937. Another explores how state legislatures call for a constitutional convention to pressure Congress into action under Article Five. There are other workarounds in the Article Five process that I hope to explore in a paper that I'm working on now.

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