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.