Can this Constitution be Saved? The Need and Prospects of Constitutional Amendment in the United States

Guest Blogger

This post was prepared for a roundtable on Can this Constitution be Saved?, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law.

Stephen M. Griffin

My contribution to what I consider the most fascinating segment of LevinsonFest is inspired by themes drawn from Sandy’s entire body of work. Without further preliminary, my initial point is that the relevance of formal change to American constitutionalism has been underestimated in part because of a neglect of state constitutional development (happily remedied in more recent scholarly work). On the state level, formal constitutional change is persistent and ongoing. Is this fact of minor significance? This seems unlikely, especially given that it is spurred in part by the use of direct democracy, still quite popular and unique at the state and local level, and by itself suggestive of one possible pathway for a national reform program.

Along this line, thinking about constitutional development at the state level should inspire us to consider more seriously the possibility that there is a substantial latent constituency for fundamental constitutional and political reform, an interest missed by those within the Beltway. Examples are easily found, including the use of direct democracy, the adoption of state redistricting commissions, reform proposals generated by the events of January 6, 2021, and increased interest in restructuring the Supreme Court, including term limits and mandatory retirement.

At the same time, the relevance of informal change to our current predicament has been underestimated because of a lack of a common theory that would enable us to better grasp how to understand “the Constitution outside the courts,” one of Sandy’s key ideas. Of course, he has made his own contribution by distinguishing the “Constitution of Settlement” from the “Constitution of Conversation.” But I believe we need to go further down the road suggested by Bruce Ackerman’s seminal work. One point Ackerman emphasized was understanding constitutional development through a historicist lens. The best way to do this is through the extensive literature on state capacity and development, much of it new since Ackerman’s original efforts, to establish a legally plausible baseline for marking out later informal constitutional changes. Once we do this, it becomes apparent that in many respects, these changes have been equal to or are of even greater importance than the 27 formal amendments.

One reason the study of informal change is relevant to reform is that it undermines the cogency of what Jeanne Shaheen Zaino in this symposium calls the inviolability argument. It also demonstrates the contradictory nature and implausibility of the argument that substantial constitutional change and reform are somehow impossible. Indeed, no matter what era of American constitutional development we examine, significant constitutional changes will always be staring right back at us.

A related issue raised by the contributions to the symposium is whether the Constitution plays a role in structuring American politics and policy outcomes. The contributors who raise this issue have my respect, but I suggest we should redeploy the inquiry. A better question suggested by Levinson’s work is how it plays that role, given that many different historians have shown over the past several decades that so many actors within American politics have spent so much time structuring their lives around it in all sorts of fascinating ways. American constitutionalism is, in effect, based on a proposal to conduct ordinary politics under the auspices of a fundamental law, an agreement to pursue a structured politics. The fact of continual party-political contestation does not change the reality that this agreement enabled a situation in which ordinary politics is filtered through an institutional sieve. Asking whether the Constitution is relevant in light of this reality is like asking whether more prosaic institutions like banks, hospitals, schools and, of course, common law courts are relevant.

If we could perhaps combine and extend these Levinsonian themes, I think they suggest that it has become increasingly difficult for the constitutional order to reproduce itself across time in an environment where there is a radical disjunction between formal and informal change. That is, substantial formal change at the national level has been frozen for half a century while informal change remains a live, though uncertain, possibility. This has no doubt contributed to a widespread sense of gridlock, a phenomenon which itself tends to reduce political trust, a crucial variable for policy innovation. Trust is related to the government’s ability to fulfill its promises and this fulfillment is hampered by a landscape strewn with formal and informal landmines. I agree with Bill Galston’s observation in this symposium that informal means of adaptation are not necessarily equivalent in terms of legitimacy to formal means under Article V. The persistent resort to informal means has been an addiction of the twentieth-century constitutional order and has ignored the costs of continually evading obstacles through jerry-rigging. 

Now to reason in this way is to risk a kind of reductionism, whereby the common distinction made between the formal text of the Constitution and the circumstances of ordinary politics embodied, say, by institutions like political parties is laid aside in favor of a perspective that sees both as elements of the constitutional order. But the gains in analytical perspective are substantial, as we can better appreciate how the constitutional order became clotted and that the solutions do not lie solely, as Sandy would perhaps have it, in formal mechanisms like a constitutional convention. It turns out that there are plenty of ways to carry out constitutional and political reforms through non-convention, non-amendment means. 

At the same time, there has been perhaps too much emphasis on the difficulty of amendment in terms of how Article V is structured rather than how political parties and social movements have implemented their visions of the Constitution. Too many political actors appear to use the difficulty of amendment as a basis for complacency rather than realizing the potential of a “politics of amendment.” In such a politics, both parties are expected to have formal amendments as elements of their platform. This would aid the public in understanding where the parties are coming from as well as serving as a crucial source of inspiration to both the regular party base and new voters. 

As may be apparent, of all the contributions submitted for the symposium, I disagree most strongly with Mark Graber’s contention that constitutional reform might be a drag on progressive politics. If we are progressives, we must admit that any fundamental reform project, even one as simple as making voting easier, is something of a “let the chips fall where they may” endeavor. A politics of amendment can and will be used by both parties—and all too the good! As many commentators have surmised, pressure is building against the structures that have maintained gridlock, ineffectual policy responses, and low trust for so long. Constitutional scholars should be devoted to finding ways out of this increasingly untenable situation rather than looking for ways to perpetuate it. In doing so, we are of course following Sandy’s example.

Stephen M. Griffin is the W.R. Irby Chair and Rutledge C. Clement Jr. Professor in Constitutional Law at Tulane Law School. You can contact him at sgriffin@tulane.edu.