an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
In response to Jack’s and Sandy’s thoughtfulposts, I thought I’d briefly say something about the kind of constitutional tradition Willy Forbath and I are writing about in the book we’re now working on and in the article that E. J. Dionne so generously quoted and discussed in his column, provoking Jack’s response.
There are many kinds of constitutional argument. A non-exhaustive list would include such broad categories as:
(1) Arguments that a particular clause or bit of constitutional text, when correctly interpreted, requires (or permits) result X.
(2) Arguments that more general features of the Constitution, such as its structure—or central commitments that the Constitution, correctly understood, embodies—require (or permit) result X.
(3) Arguments that result X is normatively desirable and we therefore ought to amend the Constitution in order to bring about result X.
Sandy would like to see more of that third type of argument.
Now at first blush, it might seem that arguments of the third type are completely incompatible with arguments of the first two. After all, how can you argue that the Constitution already requires X, and also at the same time, that we ought to amend the Constitution in order to bring about X? At a minimum this might seem a bit lawyerly (i.e. “my client didn’t do it, Your Honor—and if he did, it was justified!”).
But Willy and I find that our constitutional tradition is replete with advocates making combinations of all three of these and other types of arguments, not in the alternative but in a chorus. Very often, advocates in the domain that Jack and Sandy call “high politics” make claims of a hybrid kind, such as the following: In order to live up to our fundamental constitutional commitments, we need to change a particular bit of constitutional doctrine that has sprung up, erroneously, as an interpretation of a particular clause—and we ought to fix it, whether through Article V Amendment or through changing the composition of the Court. Hybrid arguments like these can be found in many American constitutional traditions of all political stripes. They can certainly be found in the tradition Willy and I sketch in our article about the Anti-Oligarchy Constitution.
In the article, Willy and I are exploring a tradition in American constitutional thought that views the American Constitution as fundamentally and structurally opposed to oligarchic concentrations of political and economic power. One of the signal moments for this constitutional tradition was the Progressive era, the fruits of which included several notable Article V Amendments, as Sandy notes. At least two of those, the income tax (the Sixteenth) and the direct election of Senators (the Seventeenth), are very deeply entwined with the anti-oligarchic tradition we are writing about. So, does that mean that Progressives favored the third type of argument over the other two? No, not at all. Many of the same people who were for these Amendments also argued that dethroning that era’s reigning oligarchs, and restoring rule by the people and economic opportunity for all, was necessary to vindicate an older set of American constitutional principles—principles that can be found either in the Declaration of Independence or in fundamental features of the Constitution itself.
In recent decades, as Jack notes, political conservatives have mounted an incredibly successful campaign to frame debates about the meaning of the Constitution in terms of a fight between “originalism” and “living constitutionalism.” So, how do the arguments in the tradition Willy and I are sketching map onto this dichotomy? They don’t. Because it’s a false dichotomy, then and now.
Willy and I share Jack’s deep skepticism of the supposed divide between “originalism” and “living constitutionalism.” I won’t rehearse all the arguments here. My view is that in reality we are all pluralists about constitutional interpretation, for the simple reason that no single interpretive tool can plausibly resolve all constitutional questions (for originalists or anyone else). That’s not to say we all agree; there are plenty of real disagreements about priority and about levels of abstraction and so forth—questions where Jack’s book has particular bite. But in any event, such disagreements about priority and levels of abstraction plainly lack the contemporary political punch that “originalism” versus “living constitutionalism” has out in the public sphere, where many non-lawyers believe that originalism must mean “original intent” can decide all constitutional questions. It can’t—and no originalist on the bench or in the law reviews in fact argues that it does.
That’s the contemporary picture. The artificiality of the divide between originalism and living constitutionalism is even more glaringly apparent when you are working on a book like the one that Willy and I are writing. In so many of the different constitutional eras we’re studying, we see arguments that the Constitution, and/or its interpretation, must change in order to live up to fundamental constitutional commitments. Sometimes these arguments result in Article V change. Sometimes they result in “Article III change.” Sometimes they result in change through framework statutes. Sometimes they result in no change at all at the federal level but constitutional change in the states. Trying to classify all these arguments as “originalist” or “living constitutionalist” would miss the point in such a spectacularly wrongheaded way that it is difficult even to think of a good analogy. Perhaps it would be like going through the historical fiction section in the library, and carefully attempting to classify each book as either “historical” or “fiction.”
None of this, of course, is likely to provide much comfort to Sandy. He genuinely wants to see more arguments of type (3) above, standing alone—arguments that the Constitution does not reach the result we’d like, but actually reaches the wrong result every time, which is why we need to change it! Arguments that the Constitution is fundamentally flawed have their own deep American roots, especially in the abolitionist tradition. But as for today, for Sandy I have only bad news. Arguments of type (3) exist today in some numbers, but they are not the arguments you wish for. When people today argue for Article V Amendments, they are generally arguing for Amendments that would reverse Supreme Court decisions that they believe were wrongly decided in the first place. Proponents of the new proposed Amendment to overturn Citizens United don’t believe we necessarily need such an Amendment—a new Justice or two would also do the job just as well. Their point is that five Justices’ First Amendment jurisprudence has, in their view, gone radically off the rails; advocating an Amendment is their way of saying this. Exactly the same is true for the proponents of the Human Life Amendment, regarding Roe. Even the flag-burning amendment people, if there still are any, probably think that case was wrongly decided too.
This kind of Article V Amendment talk is easily derided as silly or “political” because none of the amendments in question is actually going to happen. But I don’t think that gives this kind of Amendment talk enough credit. Sometimes proposing an Article V Amendment is one intervention in a larger conversation—a conversation that also includes, for instance, the Senate confirmation hearings for new Justices. (It’s no accident that all of these Amendments are about what Sandy calls the Constitution of Conversation.) When I hear these Article V Amendment proposals, I think about the Equal Rights Amendment, which was substantively entirely victorious despite its failure to be ratified, and I think about the Sixteenth Amendment, which gave us an income tax that the Supreme Court should almost certainly have allowed in the first place without the Amendment. And then it doesn’t seem that silly or “political” for all sides to argue for both veneration and renovation, at once—as so-called “originalists” and “living constitutionalists” and everyone else (except Sandy) all do.
It’s easy to deride the veneration part of this approach as so much ancestor-worship. But I see it as something else: Americans asserting that the Constitution is really ours. Not just ours in the sense that it’s ours to amend today. If it’s really ours—if the whole constitutional tradition is really ours—then we get to interpret what it says in ways that speak to our contemporary problems.
It’s not coincidental that the Anti-Oligarchy Constitution gained a lot of ground a century ago. It was the Gilded Age. Economic inequality was at a zenith we have only very recently begun to approach again. Many state legislatures—who picked the Senators—were blatantly controlled by powerful economic interests. One corporation essentially controlled Montana. There was a lot of oligarchy to be anti! And so, Americans did what we do: we reached back into our own constitutional tradition and found arguments for why federal and state constitutions, and their interpretations, needed to change. And then we made those changes—through a variety of means, which included but definitely were not limited to Article V. In our tradition, that’s how constitutional change—including Article V change—generally works. And that’s how we’ll need to do this work again, as we begin to grapple with the political, economic, and constitutional ramifications of what looks to be a new Gilded Age. Posted
by Joseph Fishkin [link]