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
One theme of this blog is that we give too much reverence to the Constitution's structure. Upon reflection, the unheralded decision by the First Congress to make the first set of amendments an appendix contributed to that problem by setting the 1787 text apart from the work of subsequent generations. (A 2011 paper by Mehrdad Payandeh entitled Constitutional Aesthetics: Appending Amendments to the United States Constitution explores some of these issues.)
Madison wanted to write his proposed amendments directly into the text, but Roger Sherman convinced the House of Representatives that this was wrong. Sherman's main argument was that there should be no confusion between what was approved by the Constitutional Convention and signed by its delegates (including Sherman himself) and what came later. If you think about that, though, the argument is rather weak. The signatures do not need to be included in the legal text that everyone sees, and even if they were anyone knowledgeable about constitutional law would not think that George Washington approved (or disapproved) of Prohibition or giving women the right to vote. Moreover, almost all state and national constitutions do not follow Sherman's view. They are single documents with amendments inserted into an appropriate place, and you would use annotations to learn when a given provision was ratified.
On the other hand, keeping the 1787 text pristine does enhance its status as compared to the amendments, which may have been Sherman's objective, as he was unenthusiastic about a bill of rights. And if the Constitution's legitimacy comes from the heroism of the revolutionary leaders who proposed the plan, keeping their names tied to an unchanging text may be a useful legal fiction. The point is that the way that First Congress set up the amendment process reinforces that view that there is something special about the original text that should not be changed.
One final thought. Suppose Congress wanted to issue a "Restatement" of the Constitution that put the amendments and the 1787 text together. Would that require an Article Five amendment even though no new text would be added? Posted
by Gerard N. Magliocca [link]
So long as the President, Congress and the judiciary follow the provisions of the Constitution as written, does it really matter where those provisions are written?
Query: With a "Restatement" where might the 2nd A be placed, whether by originalists or non-originalists? Would a proposed "placement" amend the militia clauses or Section 4 of Article IV?
Any "Restatement" would seem to call for explanatory text. (Note "Restatements " of various areas of the law, e.g., "contracts" in this regard.)
Paul A. Freund's "Preface" to Thomas Reed Powell's "Vagaries and Varieties in Constitutional Interpretation" (1955, Columbia Univ. Press) includes this:
"In paying his respects to the Restatements of the law, Professor Powell used to say that he could easily prepare a Restatement of Constitutional Law. In the usual form, the black letter text would read: 'Congress may regulate interstate commerce.' A Comment would add: 'The states may also regulate interstate commerce, but not too much' And then would follow a Caveat: "How much is too much is beyond the scope of this Restatement.'"
If that were in fact Sherman's reasoning for wanting to keep the amendments separate, then I have to say that he failed miserably. By appending the first ten amendments to the Constitution and calling them a Bill of Rights, they have actually outgrown the original document in importance.
If you were to ask a representative sample of Americans to give an example of something from the Constitution, I would be willingly to bet that most people would name something from either the Bill of Rights or the Preamble, and not the body of the original document itself. Of course, I actually think most people would name something from the Declaration of Independence, but that's a whole other issue.