Tuesday, February 09, 2016

Informal Constitutional Change and the “Irrelevance” of Formal Amendments

Stephen Griffin

I’ve posted a working paper, “Understanding Informal Constitutional Change” to SSRN.  Although it is more schematic than I would like, the paper provides a useful statement of my own position on the various debates concerning informal constitutional change.  In brief, my view is that we must strive to maintain the tension between relevant “small c” constitutional developments and the “big C” Constitution without collapsing either into the other.  This means I am critical of views such as those propounded long ago by Karl Llewellyn and by Ernest Young and Adrian Vermeule in the present that seem to do this, particularly by appealing to British or Commonwealth traditions of the “unwritten” constitution and constitutional “conventions.”  Because one of the most characteristic features of American constitutionalism is the designed legal supremacy of its single-document constitution, these British traditions can only be of limited help in understanding the process of informal constitutional change in the US.  Or so I argue.

I invite anyone who’s interested to check out the abstract.  My purpose here is to further develop one relatively minor argument in the paper concerning David Strauss’s widely influential article on the “irrelevance” of formal amendments (114 Harv. LR 1457 2001).  I should note that I am not trying to address all aspects of Strauss’s article, some of which I agree with.  Yet I do think that one of Strauss’s arguments has had an unfortunate effect on subsequent work.  Strauss discounted the importance of formal amendments across the board, including the Reconstruction Amendments.  He noted the surface implausibility of arguing that the Thirteenth, Fourteenth, and Fifteenth Amendments were somehow “irrelevant” to constitutional change, but nonetheless insisted that they counted as valid examples of his specific claims that formal amendments “often do no more than ratify changes that have already taken place in society” and “when amendments are adopted even though society has not changed, the amendments are systematically evaded.”

The logic of Strauss’s argument, illustrated by the preceding quotes, was that if amendment proponents could satisfy the stiff supermajority requirements imposed by Article V, then it would follow that the needed change was already well underway in “society”.  However, if this was not the case and the amendment somehow passed, it would inevitably be undermined by societal opposition.  Careful readers might note that federalism was a missing player.  So Strauss’s consensus might exist in just enough states to pass an amendment (at least in Congress), yet also have a significant impact in the states that opposed it.  In other words, the circumstances of the Reconstruction Amendments did pose a challenge.

Nonetheless Strauss took on the challenge, maintaining in particular that all the Thirteenth Amendment did was “hasten[ed] the end of slavery in a few border states by a few years.”  I respectfully suggest this argument did not survive the 2013 publication of James Oakes’s magisterial history Freedom National: The Destruction of Slavery in the United States.  Oakes establishes in incredibly rich detail that slavery could only be ended by a constitutional amendment.  Along the way, he provides a model account of how constitutional change occurs, one which strongly supports my contention that we must attend more closely to the relationship between the “small c” and “big C” Constitution.

I argue in my paper that current approaches to constitutional change tend to underestimate the role structural doctrines such as federalism and separation of powers play in American constitutionalism.  The doctrine of federalism was certainly central to the drama which culminated in the Civil War and Reconstruction.  It is therefore relevant that Oakes documents the existence of the “federal consensus,” by which all parties to the slavery controversy prior to the Civil War (save for a few outliers), agreed “that the Constitution put slavery in the states beyond the reach of federal power.”  This application of the doctrine of federalism was considered to be part of the Constitution and thus could be changed only by formal amendment.  This is significant proof that informal “small c” changes or even judicial interpretations cannot always substitute for formal amendments, even in situations not involving changes to the literal text.  Thus the relevance and significance of formal amendments is suggested strongly by Oakes’s account.

Oakes provides more.  Strauss’s argument about the irrelevance of the Thirteenth Amendment to the elimination of slavery relies on some previous conventional wisdom that the Emancipation Proclamation had already done most of the work.  Oakes shows why this view is wrong in convincing detail, although it is certainly worth noting that the germ of his argument is contained nicely within a scene in Spielberg’s film Lincoln.  In brief, the legal effect of the Proclamation cannot be equated with the Thirteenth Amendment on two grounds: it was aimed at freeing the slaves themselves, not destroying the legal institution of slavery in the states and, as a wartime measure, it was vulnerable to being altered after the war was over.  The “federal consensus” is relevant to both of these points, as it guaranteed that the prewar status quo (states could maintain slavery) would go back into effect upon the termination of hostilities.  At least, this possibility clearly worried Lincoln and the Republican Party.  As Oakes describes: “Clearly the southern states never recognized the legality of any emancipations justified by the Union under the laws of war.  There was good reason to believe that when peace was restored and federal war powers evaporated, the former Confederate states would re-enslave those who had been emancipated by the Union.”

Contrary to Strauss’s account, Oakes estimates that by the end of the war, no more than 15 percent(!) of the four million slaves in the South had been emancipated as a practical matter.  Thus only a total change in the legal order sanctioned by a formal amendment to the Constitution would suffice to create the condition that Republicans called “freedom national.”  As I recall, Oakes’s book received favorable reviews, but I wonder if constitutional theorists have paid enough attention to his exceptional achievement.  It is certainly one of the best and exceedingly thorough accounts of constitutional history I have ever read.

The lesson I draw for the theory of constitutional change is that to some extent scholars have gone overboard in stressing the role of informal change to the exclusion of the importance of at least some of the formal amendments.  Given the amount of heavy lifting that goes into passing any controversial amendment (something that describes all of the Reconstruction Amendments), we should look again before describing any of them as “irrelevant.”  At the same time, as I urge in my paper, we need to concentrate on the relationship between the “small c” and “big C” Constitution without trying to reduce one to the other.

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