Thursday, September 24, 2015

On Amendment Difficulty and Informal Constitutional Change

Stephen Griffin

Continuing with these posts on the new originalism and living constitutionalism.  The conventional approach or simple model of the difficulty of amendment starts with the observation that Article V imposes a high bar by requiring super-majorities to pass any formal amendment.  At the same time, the existence of judicial review creates an avenue by which the Constitution may be adapted to the changing needs of society.  Thus, the simple model concludes, the difficulty of amendment results in the Constitution changing “informally” through judicial interpretation.  The simple model has two elements – amendment difficulty due to formal rules and the backstop of judicial review allowing for compensating informal change.  Both are implicitly assumed to be uniform across American history.

I do not subscribe to the simple model.  Recently I have been cited for the view, expressed in a 1995 symposium in Constitutional Commentary, that Article V is the most regrettable feature of the Constitution.  If I may interject a personal note, my view is presented much more fully in my 1996 book American Constitutionalism: From Theory to Politics (and more recently in Long Wars and the Constitution).  To describe my approach in very general terms, I think we can make greater progress in understanding amendment difficulty and informal constitutional change from a historical point of view by consulting the extensive scholarship on state building and American political development.  We can use this literature to focus attention on specific periods – call them crises of constitutional change – that illuminate why the Constitution has changed in recent times principally through non-Article V means rather than formal amendments.

To be sure, the theory of constitutional change I presented in American Constitutionalism was over-complicated.  For one thing, I explored at length the possibility of understanding informal constitutional change by comparing the state and federal experience.  I’m not sure that argument works so I wouldn’t make it today.  Nevertheless, there were other features to the theory I presented that are still worth considering.  An elaboration and update of that theory follows.

Unlike the simple model, we should not assume that amendment difficulty is uniform across US history.  After all, the founding generation approved twelve amendments in a relatively brief period.  This points up that if Article V poses a problem, it developed later in American history.  It also suggests that the problem cannot be attributed simply to the extra hurdle of a supermajority rule.  Amendments have become more difficult over time for a number of reasons, including the increase in the number of states required to ratify and what political development scholars describe as the thickening of political institutions.  Yet the true “amendment difficulty” lies elsewhere.

The real genesis of the amendment difficulty argument is that no enacted (or even proposed) amendment for decades has come anywhere close to embodying the constitutional changes that have occurred, particularly since the New Deal, both in the powers and structure of the federal government and the changed meaning of constitutional rights.  This is obviously a contestable normative judgment, but one that is very widely shared over diverse areas of constitutional law, including national regulatory power, race and federalism, and national security.  This also points up, by the way, that the amendment difficulty argument itself is a product of contemporary times and likely did not exist prior to the late nineteenth century.

As a side matter, I don’t agree that constitutional change through judicial review is best conceptualized as “informal” if Supreme Court rulings can themselves be overcome only through formal amendment.  To the extent that Court rulings have the same status as the text of the Constitution (a somewhat contested point, I recognize), they should count at least as quasi-formal aspects of our constitutional structure.  But this is not to deny that informal constitutional change does occur.  Rather, it has a different institutional home – namely, the branches and activities of government not usually overseen by the Court.  This line of argument exposes a hidden implausible assumption of the simple model – that the Court by itself can somehow modify any aspect of the Constitution in order to keep it up to date.  That doesn’t work for war powers, for example, as I explore at length in Long Wars and the Constitution.

The contrast I develop in my theory is thus between the “legalized” (or judicialized) Constitution – the original text plus valid amendments plus judicial interpretation – and the “nonlegalized” or informal Constitution.  The latter is now conceptualized by many scholars as the “small-c” “unwritten” constitution, a notion inspired in part by the British model of constitutional conventions.  Although I considered the British model in my early work, I later abandoned this line of inquiry when I realized it was inconsistent with any sort of adherence to the status of the Constitution as supreme law.  This suggests the possibility, often not considered by scholars who take inspiration from the British model, that aspects of the “small-c” constitution could themselves come into conflict with its “big-C” counterpart and so be rendered (or regarded) as invalid.  War powers is again an example.  Allowing, however, that the “small-c” concept has a basis in reality, the critical question is still how to specify the relationship between the two.

I’m afraid most of this is by way of ground clearing, which means we need to restart and restate the amendment difficulty argument.  Recall that all the simple model offers is the distinction between formal and informal change, the bare assertion that judicial interpretation can account for all the informal change that has occurred (even in areas such as presidential war powers where the Court has never been consistently active), and the assumption that both of these elements have been relatively uniform across American history.  By contrast, I argue that while formal change was an important element in adapting the Constitution to new circumstances into the twentieth century, the difficulty of amendment increased substantially over time.  So the significant adaptations of roughly the last eight decades have occurred solely through non-Article V means (putting the point this way to avoid the assumption that judicial interpretation has been the only means of adaptation).

This way of posing the issue emphasizes the twentieth century, especially the New Deal period, as the critical point at which we got off the Article V track (originalists might well agree!).  Within that period, the issue should not be posed so much in terms of whether we constructively amended the Constitution through judicial interpretation, but rather how we should in general understand the problem of informal constitutional change.  Leaving the simple model behind involves appreciating the relevance of three questions: (1) how to conceptualize the historical baseline against which constitutional change is measured; (2) why change, particularly during the New Deal, did not (and probably could not) occur through formal amendment; (3) how did constitutional change actually occur – the mechanisms of change.  In line with my suggestion that the political development literature can be of great use here, I contend that the overarching crucial issue is how to understand the relationship between the formal, “big-C” Constitution and the development of American state institutions.  I’ll take up these questions in my next post.

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