What Constitutionalism Means (Not a reluctance to amend the Constitution, but a will)

Soon after Texas governor Rick Perry announced his presidential campaign, a few websites, mostly liberal, compiled a list of the constitutional amendments he has at various times touted. He has spoken favorably about amendments to end the lifetime tenure of federal judges, to allow supermajorities of Congress to overturn Supreme Court decisions, to repeal the Sixteenth and Seventeenth Amendments (which established, respectively, the income tax and the direct election of senators), to limit federal spending, to define marriage in American law as the union of a man and a woman, and to prohibit abortion.

Liberals responded, either explicitly or implicitly, with a comment that was partly a question and partly a taunt: Why are conservatives, who place so much emphasis on fidelity to the Constitution, so keen on changing it? It is a point they have also made during recent debates over the proposed balanced-budget amendment.

The premise is correct. Over the last generation, conservatives have been much more likely than liberals to propose formal amendments to the Constitution. The failed campaign for the Equal Rights Amendment in the 1970s was the last time liberals attempted to use the amendment process outlined in Article V of the Constitution. Conservatives, on the other hand, have promoted not only the amendments that Governor Perry has mentioned but additional measures allowing Congress to ban flag-burning, allowing schools to organize prayers, and letting a supermajority of state governments overturn federal laws.

But that disparity does not reveal a defect in conservatives’ constitutionalism. What the liberals’ reaction to that disparity reveals is how little they understand constitutionalism, or at least what conservatives mean by it.

For two features of our constitutional politics could not be plainer: First, that from Woodrow Wilson’s day to our own, progressives have been far more likely than conservatives to express impatience with the whole constitutional scheme of limited government; and second, that progressives have long sought, often successfully, and still seek to change the Constitution without going to the trouble of formally amending it.

If you doubt the first point, recall how liberals reacted to the difficulties they encountered in enacting Obamacare. The political system was said to be broken; complaints were leveled against the undemocratic Senate. If you doubt the second point, recall that after the ERA failed, liberals achieved almost everything they had wanted from it through the courts. There is nothing that liberal legal academics and activists refuse in principle to read into the Constitution because the ERA is absent from it.

The Supreme Court has amended the Constitution hundreds of times, in ways large and small, by reinterpreting its provisions, almost always to serve progressive ends. American constitutional law now includes restrictions on police procedure, regulations on permissible school-discipline policies, minute if unpredictable edicts about the proper placement of municipal displays involving religion, and rights to solicit and perform abortion at any stage of pregnancy.

In each case, Americans had spent decades living under the relevant constitutional provisions without anyone’s imagining that they commanded what the Court now says they command. It is always possible, of course, that earlier Americans, by ratifying those provisions, committed themselves to principles that would have future applications they could not imagine. But the vast majority of the Court’s informal amendments to the Constitution cannot be defended in this manner, because it is simply implausible to maintain that, for example, the ratifiers of the Fourteenth Amendment intended to grant the Supreme Court the power to strike down any state law that a majority of justices considered to be an offense against their understanding of liberty or equality.

If liberals are unenthusiastic about explicitly amending the Constitution, then, it is because they have little need to go through the laborious process of getting two-thirds of Congress and three-quarters of the states to agree to their constitutional proposals, since they can follow the easier path of getting five or more justices of the Supreme Court to amend it for them. It is inconceivable that they could persuade the requisite national supermajority to amend the Constitution to command all governments, state and federal, to accord the status of marriage to same-sex couples. It is entirely conceivable that they could persuade the Court to do it.

Conservatives for the most part do not behave similarly (for whatever reason: perhaps in part a lack of opportunity). We have not sought to get the Supreme Court to command states to recognize fetal personhood, or to command public schools to organize prayers, or to forbid same-sex marriage. Our preference for formal constitutional amendments is itself a type of fidelity to the Constitution: fidelity, specifically, to Article V. We adhere to the form the Constitution itself lays down for how changes to it should be pursued. The Constitution is a magnificent document, by and large, and embodies a great deal of wisdom about government. Consider, for example, the little-appreciated compact clause. The Founders acted on insights that public-choice theorists would spend much of the latter half of the 20th century reestablishing. They understood that state governments must sometimes cooperate, but also that their cooperative projects would often be sinister attempts to exploit other states or one another’s citizens. They understood as well that it would be impossible to spell out a rule in advance that authorized the good and necessary types of cooperation while barring the improper kind. So they established a rule: Any compact among the states requires the approval of a majority of Congress. It was an ingenious scheme; if it lacks anything, it is only a mechanism to make the Supreme Court enforce it. (The clause has been interpreted into nothingness.)

Conservatives sometimes say that it’s “the original Constitution” we favor, so as to distinguish it from the one that the Supreme Court has written. But this locution is misleading. Some of the amendments to the Constitution have added to its excellence or remedied its defects: above all, the Thirteenth Amendment, prohibiting slavery. But even the amendments that have less to recommend them are the law, and we are willing to abide by them until subsequent amendments nulify or modify them.

Constitutionalism, in short, is simply a special case of respect for the rule of law: the case in which the law in question is the supreme law of the land. The rule of law demands that those who apply the law — be they judges, sheriffs, presidents, or governors — apply it faithfully. If those officials can change the meaning of the words, there is no point to having a written law.

There are different types of originalism, and legitimate debate about what counts as originalism. But constitutionalism — which is, again, to say the rule of law — entails some sort of originalism. The law has to be knowable, and its meaning has to be fixed at the time of enactment (although, of course, its application may change based on the circumstances to which it applies). Officials who have to interpret the Constitution may or may not err in ascertaining the original meaning of the provisions at issue, or in inferring what norms that meaning implies, or in applying the norms to the legal case or policy dispute at hand. But any authoritative interpretation of the Constitution that departs from plausible understandings of the original meaning is itself a violation of the rule of law. Hence originalism is not merely one interpretive methodology among many.

To put it another way, constitutionalism rules out certain courses of action. It means that it is never acceptable for a congressman to vote for unconstitutional, or even doubtfully constitutional, legislation on the theory that the courts will sort it out. Nor can a constitutionalist judge treat the Constitution as simply raising questions — e.g., what is the right relation of society to the individual? — to which the judge makes up an authoritative answer. Both are cases of disobedience to the Constitution.

The fact that the Constitution is the law is not by itself sufficient reason to obey it. If it were radically unjust, we would have no such obligation; resistance to it, even on the part of officials exercising power under it, would in some cases be morally obligatory. Of course, and luckily, our Constitution is far better than that. But conservatives’ reverence for most of the content of our Constitution is the least important feature of constitutionalism, which is properly understood as the willingness to obey the Constitution, including those parts of it we do not revere.

Return now to Governor Perry’s list of constitutional amendments. There is, as we have seen, no contradiction in simultaneously believing that the Constitution should be obeyed and that it should be changed, or that it is great and that it can be improved. But the amendments Perry has discussed are a tighter fit with constitutionalism than that, because the principal argument for all of them is precisely that they would undo the damage to the constitutional order that departures from constitutionalism have done. Thus Perry wants to amend the Constitution in order to restore its proper meaning.

The abortion amendment is almost entirely a direct response to the amendment that the Supreme Court worked in Roe v. Wade. The marriage amendment is mostly a response to the threat that same-sex marriage will get its own Roe. The amendments on life tenure for federal judges and congressional nullification of judicial decisions are responses to the courts’ habit of rewriting the Constitution. Four of the seven amendments, then, are occasioned by judicial departures from — one might even say assaults on — constitutionalism.

The remaining three proposed amendments can be seen as backstops to other constitutional provisions that need them. Perry undoubtedly believes that the direct election of senators and the income tax have made Congress less likely to abide by the limits of its constitutional power to regulate commerce, and that a limit on federal spending will make Congress more likely to respect the Tenth Amendment (reserving all powers not granted to the federal government to the states and the people).

It may be that some of these amendments are undesirable, or are not worth pursuing for some other reason. (At least four of the seven strike this conservative constitutionalist as unwise.) But they are clearly constitutionalist in spirit. All of them involve following the proper constitutional channels for constitutional change — channels that require a great deal of public deliberation and support before the change can occur. Some of the amendments would bring governmental practices closer to the actual meaning of the Constitution; the others respond to perceived conflicts between parts of the Constitution by discarding the less valuable and basic ones. And so it is that Governor Perry, in suggesting that the Constitution be changed, has demonstrated more fidelity to it than most of those who sneer at him.

“The premise is correct. Progressives dismiss it because they dismiss the entire idea of limited government.”

Not only that they basically gave up completely on the Idea of Article 5 as a means of achieving their ends in the 1960/1970’s.

Truth be known their right, in a world where practically the 9 Federal employees in black robes can dictate new Constitutional law to whatever effect they so desire there is no point in amending the Constitution. Indeed there is little point in having a Constitution in the first place.

This is why I point out that if this is truly the way our system works, then our system does not work, and never will. Curiously enough the Federal “supreme court” never effectively welded this power prior to the progressive era. So I would submit that people who say this is how our system “works” are dead wrong.

Indeed I would point out the Kentucky and Virgina resolutions as well as logical experiment as evidence to the contrary.

Perry Ping....

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