The Desirable Constitution and the Case for Originalism Formatted: Font: Bold
John O. McGinnis* & Michael B. Rappport**
I. The Desirable Constitution...... 4 A. The Nature of the Argument...... 4 B. The Elements of the Desirable Constitution ...... 6 II. The Supermajoritarian Theory of the Constitutionalism...... 7 A. The Basic Theory of Majority and Supermajority Rule ...... 7 B. How Supermajority Rule Leads to Good Entrenchment ...... 9 1. The Preference Perspective on Entrenchments...... 9 2. The Accuracy Perspective on Entrenchments...... 12 3. Supermajority Rules and Good Entrenchments...... 16 C. Symmetry between Originating and Repealing Supermajoritarian Provisions.... 17 D. Original Methods Originalism as the Appropriate Interpretive Method for the Desirable Supermajoritarian Constitution...... 18 III. The Compliance of the United States Constitution with the Origination and Amendment Supermajority Rules of the Desirable Constitution ...... 19 A. The Supermajority Rules for Creating and Amending the Constitution...... 19 B. The Reasonable Stringency of the Constitution’s Supermajority Rules...... 20 C. The Rough Symmetry between Origination and Amendment...... 24 IV. The Continuing Desirability of an Old Supermajoritarian Constitution...... 26 A. Constitutional Enactors Can Design a Constitution to Last for a Long Period .... 26 B. A Comparison with Judicial Updating...... 27 1. The Process of Judicial Updating and Constitutional Amendment ...... 28 2. Judicial Updating Undermines the Constitutional Amendment Process ...... 31 C. A Presumption of Originalism...... 34 D. The Dead Hand Problem...... 36 V. Supermajoritarian Failure...... 37 A. Replacing the Existing Constitution ...... 38 B. Judicial Correction...... 39 VI. Process Defects and the Theory of Constitutional Failure ...... 41 A. The Exclusion of African Americans...... 41 B. The Exclusion of Women...... 46 C. Representation by States rather than People ...... 47 D. The Stringency of the Constitutional Amendment Process ...... 50 VII. Original Methods Originalism: The Constitution’s Interpretive Rules ...... 50 A. Discovering the Original Methods...... 50 B. The Content of Original Methods Originalism in our Constitution...... 52 1. Interpretation of Statutes...... 53 2. Constitutional Interpretation ...... 53 VIII. Precedent and Original Methods Originalism...... 55
1 The welfare of society should be the object of legal interpretation as well as law itself. In this article we show how originalism advances the welfare of citizens of the United States, because it promotes constitutional interpretations that are likely to have more beneficial consequences than nonoriginalist theories. While we agree that originalism also promotes the rule of law by constraining judges, we do not rest its beneficence on those claims, but show that originalism makes the Constitution not a perfect document but still the best it can be today. We thus respond to a principal critique of originalism—that it remains a narrow, legalistic theory and fails to connect the contemporary Constitution to the aspirations of the polity.1
The benefits of ordinary legislation for society and the proper theory of its interpretation are routinely connected to the virtues of a democratic legislature. We likewise connect the benefits of a desirable constitution and the proper theory of constitutional interpretation to the virtues of the constitution making process itself.2 We show why a relatively stringent supermajority rule is likely to generate desirable constitutional provisions, just as majority rule is likely to produce desirable legislation. We then show how the United States Constitution in both its origins and amendment process follows an appropriately supermajoritarian template. We demonstrate that a constitution so constructed can continue to be desirable years after its enactment, rebutting the argument that originalism proves defective because it mandates rule by the dead hand of the past.
By focusing on constitution-making rules as a principal source of a constitution’s beneficence we also show why originalism, unlike non-originalist theories, does not depend on a highly contestable theory of the good. Instead, constitutional provisions derive from a process that reflects a consensus of the values and interests of the many rather than the particular theories of a few. Originalism then retains the benefits of that consensus.
By showing that a constitution’s benefits derive in large part from the constitution-making process, we also reorient the content of originalism. Given that it was the decisions of enactors from which those benefits derive, the interpretive rules they expected to be applied remain the key to interpretation today. We call this form of originalism “original methods originalism. ” We show that in the context of the United States Constitution original methods originalism likely incorporates much of originalism as conventionally understood, but may also help us settle on interpretive rules to resolve the inevitable ambiguities in constitutional text.
Finally, we recognize that in 1789 the constitution making process was far from perfect. Indeed, we believe previous defenses of originalism have been seriously
*Professor of Law, Northwestern University **Professor of Law, University of San Diego Deleted: San Diego 1 See, e.g.,, Michael C. Dorf, Foreword: The Limits of Socratic Deliberation, 112 HARV. L. REV.4, 26 (1998)(arguing that originalism is characterized by its “inattention” to “future consequences”). 2 Thus, we try to advance the analysis of those who view the Constitution as a “superstatute.” See Henry P. Monaghan, Our Perfect Constitution, 56 N.Y.U. L. REV. 353, 392 (1981)
2 defective in their failure to address the substantial defects of the original constitution- making process, particularly the exclusion of almost all African Americans and women. We develop a theory of constitutional failure to show that, given the corrections the Constitution has made to most evident flaws flowing from these deficiencies, following the original meaning of the Constitution today is better at preserving the benefits of constitutionalism than the alternatives of junking the Constitution or permitting the judiciary the discretion to “correct” it.
Constitutional theory has been too long in the grip of a nirvana fallacy. Even when our fundamental law has defects, it does not follow that the judiciary is likely to improve upon it, because it lacks access to the information and discipline provided by a desirable constitution-making process. Although originalism does not make our Constitution perfect, it remains the best interpretive theory on offer.
In Part I we discuss the features of a desirable constitution. They include representative democracy and individual rights as well as structures to protect against majority tyranny. They also include process values such as consensus and compromise because these values help generate such important elements of constitutional government as the allegiance and affection of citizens.
In Part II we show that a relatively stringent supermajoritarian process is the desirable for constitution making. First, supermajority rule helps assure the bipartisan consensus that facilitates the widespread allegiance of citizens as well as guarantees rights for minorities. Second, supermajority rule improves the inherently erratic judgment of decisionmakers about entrenchment by restricting the agenda of proposals and creating a veil of ignorance that promotes disinterested decisionmaking. Here we also show that orginalism preserves the advantages of the supermajoritarian settlement because it is the understanding of the enactors that determined their consensus support.
In Part III we show how the United States Constitution replicated the formal rules for a desirable constitution. We show that the process for originating and amending the constitution reflect similarly stringent supermajority rules. We respond to claims that Article V is too stringent a supermajority rule by showing that it has permitted very substantial changes in governance. In fact, any excessive stringency in the current day is largely caused by nonoriginalist interpretation of justices who try to anticipate the outcome of the amendment process and thereby frustrate its actual operation.
In Part IV we offer reasons why an old supermajoritarian constitution remains beneficial today and should not be updated by judicial interpretation. We describe the way the enactors can frame a constitution so that it will not become out of date. We also describe the substantial costs of judicial updating. The Supreme Court cannot easily replicate a process for deliberative decisionmaking that will reach consensus determinations that are good for the long term. We end by showing that the supermajoritarian theory of the Constitution dissolves the dead hand problem, because by handing down desirable provisions previous generations advantage rather than burden subsequent generations.
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In Part V we offer a theory of supermajoritarian failure to show that departures from desirable conditions for constitution making do not necessarily suggest that a theory other than originalism should be embraced for constitutional interpretation. If a constitution does not meet desirable conditions for constitution making, there are three possible responses. The first is to junk the constitution. But given the prosperity and stability that the United States Constitution has engendered, the defects would have to be very great to justify junking it. The second alternative is to permit judges to correct the constitutional defects that flowed from the non-desirable conditions. But such correction has most of the costs of judicial updating. Thus, the third alternative of following originalism can often remain the more attractive one, particularly when the most evident flaws flowing from the original constitution making process have been corrected.
In Part VI we apply our theory of constitutional failure to show that the continuing imperfections from its process defects do not justify a departure from originalism because these alternatives would be worse. We acknowledge two major departures from desirable conditions—the exclusion of African Americans and women from the constitution making process But the problems of exclusion have been in substantial measure corrected by subsequent amendments that provide for voting and equal rights and judicial correction cannot replicate other, subtler differences in the Constitution that the inclusion of these groups might have prompted. We also address some other process defects, such as the representation of states rather than individuals in constitution making, and show that these also do not justify departures from originalism.
In parts VII we briefly show that original method orginalism can be implemented in our own Constitution. We suggest why these methods are likely to encompass originalism as conventionally understood. In Part VIII we show that original methods originalism comports with a theory of precedent. Thus, our theory of constitutionalism, unlike some other originalist theories, does not require wholesale repudiation of past non- originalist decisions. In this way as well, our theory offers a practical way forward.
I. The Desirable Constitution
In this Part, we discuss the enactment of a desirable constitution. We begin by discussing the nature of the argument for the constitution that we are making. Then we discuss in general terms what a desirable constitution is like.
A. The Nature of the Argument
In this paper, we argue that a constitution enacted pursuant to appropriate supermajority rules is likely to be desirable and that securing the benefits of such a constitution requires that it be interpreted using originalist methods. Our normative approach to constitutions and interpretation is based on desirable consequences. A desirable constitution is one that promotes the welfare of the people of the nation. When a nation has a desirable constitution, there is a strong normative case for following that constitution because doing so will promote the nation’s welfare. So far, the argument has
4 not even referred to supermajority rules or the method for enacting the constitution. It is simply a consequentialist argument for following a desirable constitution.
The supermajoritarian passage of a constitution becomes relevant when we begin to ask how a desirable constitution can be enacted. A nation needs a method for enacting a constitution. While some have argued that majoritarian enactment is beneficial, we maintain here that the best way of enacting a constitution is generally through supermajority rules. Supermajoritarian passage has many benefits, including promoting consensus and encouraging desirable long-term provisions. We argue that a supermajoritarian process is not only a better way of enacting a constitution than a majoritarian or minoritarian process, we also maintain that a supermajoritarian process is likely to produce a genuinely desirable constitution.3
The desirability of the supermajoritarian passage of a constitution also has implications for how we evaluate the results of that process. While most people will have specific views about what constitutional provisions would operate to produce the greatest welfare for the nation, their views are unlikely to be identical with the constitution that emerges from a supermajority process. It is not clear, however, that such individuals should treat their views as superior to the results of the supermajoritarian process. The various virtues of the supermajoritarian process – such as producing a constitution that is supported by a consensus and that contains beneficial long term institutions – raise the possibility that the results of that process may be superior to our own intuitions about a desirable constitution. Of course, the results of the supermajority process may not necessarily be superior, because we may be confident that certain of our political or factual views are superior to those held by the enactors of the constitution. But even if we are confident our views are superior, we must be careful to recognize that it might not have been desirable for the constitution to have incorporated what we regard as superior values if those values were rejected by the people who wrote and had to live under the constitution.
Our argument, then, does not assert that whatever a supermajoritarian process generates is necessarily desirable. Our claim is more limited. It is that a supermajoritarian process provides an extremely effective means of producing a desirable constitution. But a supermajoritarian process is not a necessary condition of generating a desirable constitution – it is possible that individuals or a majority could produce a desirable constitution. Nor is that process a sufficient condition of generating a desirable constitution – it is possible that a supermajoritarian process could generate an undesirable constitution. While a supermajoritarian process is neither necessary nor sufficient for a desirable constitution, we believe it is quite likely to produce a desirable constitution and it is a better method for producing such a constitution than any other.
3 Our claim that the constitution enacted under a strict supermajority rule is likely to be desirable remains subject to certain qualifications and limitations, which we develop below. Here, we can emphasize two of them. First, we assume that the people who enacted the constitution came from a society that held at least moderately accurate views about the world. We generally believe that liberal democracies as well as some other nations satisfy this requirement. Second, we acknowledge that as time passes, the less likely it is that people will view the constitution enacted by the original supermajority as desirable. But, of course, as time passes, such a constitution can be amended and made to better conform to modern views.
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In sum, our view of the desirable constitution is not at base procedural, but substantive – the desirable constitution promotes the welfare of the nation. Yet, our argument claims that the supermajoritarian process is the best means of producing a substantively desirable constitution. In this respect, the supermajority process of generating a constitution resembles another key legal institution – the criminal trial. A trial that follows desirable procedures is neither a necessary nor a sufficient condition for getting the right outcome, but we have devised no other better human institution for reaching the right result.4 Consequently, when a case has complied with the appropriate procedures, we treat the outcome as correct. So should we treat the constitution produced by appropriate supermajority rules. Given that supermajority rules are the best procedural devise for generating a constitution, constitutions generated in compliance with them have a strong claim to correctness.
B. The Elements of the Desirable Constitution
Because it is the desirability of a constitution that gives it its normative appeal and justifies interpreting it with originalist methods, it is important to give some description of what we regard as a desirable constitution. A description of a desirable constitution is also useful in clarifying our argument that a supermajoritarian process is likely to produce such a constitution. Of course, given our view that a supermajoritarian process may lead to different desirable constitutions in different societies at different times, and that a supermajoritarian process can produce results that are sometimes superior to those we would design on our own, we not believe it is appropriate to provide a specific description of a desirable constitution. But we do believe that desirable constitutions have certain general characteristics. Here we attempt to describe some of the salient features that a desirable constitution have in a modern, liberal society.
First, a desirable constitution would employ a significant degree of representative democracy in an effort to have day-to-day government policy reflect the values and interests of the people, and to make the government accountable to the people for its performance.5 Second, a desirable constitution includes political structures and mechanisms that places limits on the power of both majorities to harm minorities and on the government to exploit agency costs for its own advantage.6 Thus, one would expect a desirable constitution to use devices that would provide checks and balances against majority tyranny and that would respect the local autonomy of places where minorities
4 Our view of the Constitution thus parallels Paul Bator’s view of the criminal trial. No human institutions can be certain of being transcendentally correct. Therefore the focus on law should be on the best procedures to obtain correctness at reasonable cost and the results so obtained then have a claim to finality. See Paul Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 HARV. L. REV. 441, 447-448 (1963). 5 Representative democracy seems to be the sine qua non of modern constitutionalism. See Sotoiros Barber, Professor Eisgruber, the Constitution and the Good Society, 69 FORD. L. REV. 1251, 1251-52 (2001) (describing ideas of constitutionalism that all include representative democracy, even if they include nothing beyond representative democracy). 6 On the importance of minorities rights to constitutionalism, see Steven P. Croley, The Majoritarian Difficulty: Elective Judiciaries and the Role of Law, 62 U. CHI. L. REV. 689, 694-697 (1995).
6 could predominate. Methods of promoting these goals encompass the separation of powers and federalism. Third, a desirable constitution includes protections of individual rights and other vital interests of the people, which suggests, but does not necessitate the use of some form of judicial review.7
Fourth, a desirable constitution would also include long term structures that would enable future generations to inherit the benefits of a stable and continuing constitutional structure.8 Thus, a desirable constitution tends to have an indefinite term and be difficult to change. Finally, a desirable constitution would also be the product of a consensus of the nation. A constitution that was strongly opposed by a significant minority would cause great disaffection and alienation, since that constitution would be so difficult to eliminate.9
In discussing the concept of a desirable constitution, it is important to emphasize that we are not suggesting that a single constitution makes sense for all nations or even a particular nation. Nor are we suggesting a single constitutional arrangement, such as a United States-style constitution, is superior. Many of these goals, such as limiting the power of the majority, can be accomplished in different ways, and the best way varies in different nations with different histories. Yet, it is still possible to describe in general terms the character and purpose of a desirable constitution. 10
II. The Supermajoritarian Theory of the Constitutionalism
Appropriate supermajoritary rules are likely to generate good entrenchments— constitutional provisions that are insulated against repeal by ordinary politics. We first offer a brief theory of the circumstances in which supermajority rules can improve on the generally beneficial process of majority rule. In the next section we then describe why majority rule has defects in the process of constitution making and how supermajority rule corrects for them. Finally, we show why appropriately stringent supermajority rule is likely to generate good constitutional provisions or entrenchments.
A. The Basic Theory of Majority and Supermajority Rule
7 See Louis Henkin, Constitutionalism, Democracy and Foreign Affairs, 67 IND. L. REV. 879, 886 (1992) (seeing judicial review as necessary to monitor constitutional protections). 8 Barry Friedman & Scott B. Smith, The Sedimentary Constitution, 147 U. PA. L. REV. 1, 87 (1998) (discussing the importance of constitutionalism in protecting enduring structures and values). 9 On the importance of consensus in constitutionalism, see Hannah Arendt, Civil Disobedience, printed in CRISES OF THE REPUBLIC 76 (1972). 10 It is also is important to emphasize that the general description of an desirable constitution is not meant to suggest that we know precisely what a desirable constitution is or could necessarily identify one for a particular country at a particular time. A supermajoritarian process for enacting a Constitution will in many respects be superior at determining the desirable constitution. Even assuming that one has confident views about the abstract principles that should govern a constitution, the degree to which a nation’s history and the degree to which the provisions represent a consensus and a reasonable compromise turn on the process by which it is enacted
7 In developing our theory of supermajority rules, we here employ two positive approaches to the legislative process. The first approach views the behavior of citizens and legislators in terms of their preferences, which we assume to be mainly self- interested. The second approach views the behavior of citizens and legislators on the assumption that they mainly seek the public interest. Under the preference approach, the principal question is whether majority or supermajority rule is the better aggregator of the preferences of the citizens – that is, which voting rule will produce greater net benefits for the nation. Under the accuracy approach, the question is which voting rule will better aggregate the judgments of individuals to select most accurately the policies that will promote the public interest. While these two approaches make markedly different assumptions about citizen and legislative behavior, they complement one another because people have both types of motivations. That supermajority rules for the enactment of constitutional provisions can be shown to be desirable under both the preference and accuracy approaches provides strong reinforcing evidence that supermajority rules are likely to be desirable in the real world.
We begin our defense of supermajority rule for constitution making by acknowledging that majority rule is a good default rule for political enactments. The reasons for its beneficence have been well described elsewhere and we only briefly summarize them here. Under a preference approach, if each voter supports laws that provide him with net benefits, then the laws supported by the majority should produce total benefits that exceed total costs, because the benefits to the greater number of people in the majority will exceed the costs to the minority.11
Under an accuracy approach, majority rule is also generally likely to be beneficial. We use the decisionmaking model that underlies the famous Condorcet Jury Theorem. That theorem assumes that voters choose from two alternatives that have an equal chance of being true.12 It then holds that when individuals in a group make decisions independently of one another about the truth of propositions and each has a greater than 50-percent probability of being correct, 13 the proposition supported by the majority is likely to be true.14 If one assumes that legislators pursue a particular vision of the public interest, such as welfare maximization, then the views of the majority about how to achieve this result are likely to be true.
Both the accuracy and preference perspectives can also be used to support
11 We recognize that this argument assumes, however, that the average cost imposed on people harmed by the law does not exceed the average benefit to people helped by it; otherwise, the majority might pass a law that provides small benefits to itself, but imposes greater costs on the minority. We discuss how supermajority rule addresses this problem. See infra notes xx and accompanying text. 12 See DENNIS MUELLER, PUBLIC CHOICE III 129 (2004). 13 Id. 14 Prominent among legal theorists invoking Condorcet are Frank Michelman and Jeremy Waldron. See, e.g., Jeremy Waldron., Democratic Theory and the Public Interest: Condorcet and Rousseau Revisited, 83 AM. POL. SCI. REV. 1317, 1317–18 (1989) (applying the Condorcet Jury Theorem to Rousseau’s theory of the general will in order to justify majority rule); Frank I. Michelman, Why Voting?, 34 LOY. L.A. L. REV. 985, 996 (2001) (stating that, in an epistemic theory of justice, the Condorcet Jury Theorem serves as justification for majority rule)
8 majority rule for enactments by representatives of the people as well. Assuming that legislators vote on the basis of genuine beliefs about the public interest, majority rule is beneficial on Condorcet grounds. If legislators votes on the basis of interests, majority rule may also be beneficial. In this situation, legislators are selected because they will further the preferences of citizens and therefore majority legislative rule will give rough effect to the preferences of a majority of the voters.15
For supermajority rule to improve on majority rule, majority rule must have a defect that produces bad measures and dissipates the benefits we have described. Moreover, supermajority rule must help to correct for that defect. In the next several sections we investigate how supermajority rule corrects for the defects of majority rule in the enactment of constitutions and helps to generate desirable constitutional provisions.
B. How Supermajority Rule Leads to Good Entrenchment
Here we consider supermajority’s rules correction for the defects that prevent majority rule from generating an approximation of a desirable constitution. In other work we have set out more formally the structure of preference and accuracy models.16 Without reproducing the technical apparatus of this work, we apply it to the question of the appropriate rules for constitution making.
1. The Preference Perspective on Entrenchments.
Here we consider how supermajority rule corrects the defects of majority rule in generating a desirable constitution when legislators act on the preferences of their constituents. We assume for simplicity sake unless otherwise stated that legislators reflect their constituents’ preferences without substantial agency costs. We show that majority rule does a poor job of producing constitutions that have three desirable characteristics – enjoying consensus support, being enacted without partisan motivations, and protecting the individual rights of numerical minorities. Supermajority rules, by contrast, do a much better job of producing constitutions with these characteristics.
First, while constitutions should be supported by a consensus, majority rule may not produce a consensus constitution, because majorities can easily enact a constitution that is strongly opposed by a substantial minority of the nation. It is not clear whether the public will place a high value on consensus. If the public neglects this important value, then of course there is little reason to believe that a majority will restrain itself from enacting provisions that it supports but are strongly opposed by a substantial minority.
15 To be sure, the process of representation does not work perfectly and legislators sometimes depart from the positions that a majority of the electorate would adopt if they were part of the process of legislative deliberation. Nevertheless, before rejecting majority rule in the legislature, one would need to explain how departures from majority rule would better represent the wishes of majorities of citizens. 16 See John O. McGinnis & Michael B. Rappaport, The Condorcet Case for Supermajority Rules, 16 SUP. CT. ECON. REV. (forthcoming 2008) (manuscript on file with authors); John O. McGinnis & Michael B.Rappaport, Majority and Supermajority Rule: Three Views of the Capitol, 85 TEX. L. REV. 1115 (2008).
9 But even if the public placed a high value on passing a consensus constitution, it still might fail to enact one under majority rule, because majorities face a prisoner’s dilemma in expressing this sensible preference. If a majority believed that it would be better off entrenching only those provisions it favors that also have a consensus, such self-restraint could lead to the worst of all possible worlds if other majorities did not exercise similar restraint. If the first majority refrained from entrenching provisions that it favored and others opposed, but then subsequent majorities did not follow such restraint, the original majority would enjoy neither the benefits of consensus nor the inclusion of its preferred provisions into the constitution. Thus, majorities may be extremely reluctant to exercise the restraint necessary to obtain consensus.
A strict supermajority rule, by contrast, automatically restricts the entrenchment of provisions to those that have consensus support. Thus, it protects constitutional consensus against both the public’s undervaluing of this goal and the effects of a prisoner’s dilemma.
A second desirable characteristic of a constitution is that it should not be based on partisan motivations. Under a preference approach, one assumes that members of the public enact constitutional provisions that further their actual interests. But in a political system with political parties, citizens (and legislators) often act, for both rational and nonrational reasons, to further their parties’ interests rather than their own. Such partisanship often leads to problematic results.17
While partisanship may be a necessary evil of ordinary government, it is more undesirable in the constitutional enactment process. Partisan concerns often involve a political party’s short term interests that become rapidly out of date. Moreover, partisanship will often reflect emotional rather than rational considerations that are caused by an “us versus them” attitude. This kind of attitude can create cycle of bitterness and revenge, particularly dangerous to constitution-making. Finally, partisan measures are typically divisive, because a large portion of the public will be a member of the opposite party and thus undermine the allegiance in diverse sectors of society that a Constitution should enjoy.
Under a majority entrenchment rule, citizens and their legislative representatives can entrench their party’s interests without significant constraint. Moreover, partisanship may become even more prominent in the entrenchment context because the parties may be led into a race to entrench. Each party may fear that the other will entrench its agenda unless it entrenches its own agenda first.18 This race may cause citizens and legislators to
17 Because being a member of a strong political party will often allow citizens to further their interests, citizen will often support their party’s interests rather than their own for strategic reasons. But this preference for their party’s interest is not a primary preference, only a strategic one. Thus, the need to further the party’s interests is a cost of obtaining their actual preferences. If politics could be structured so that citizens could obtain their preferences without having to further their party’s interests as much – as we suggest supermajority entrenchment rules allow – citizens would be better off. 18 The problem of partisanship entrenchment has been recognized in the legal literature largely in the context of stacking the Court with partisans of one party. See, e.g., Michael Gerhardt, The Constitution Outside the Courts, 51 DRAKE L. REV. 775, 789 (2003) (discussing partisan entrenchment in the Supreme
10 support entrenchments that are not in accord with the actual preferences of citizens. For instance, one party might decide to entrench low taxes and low debt to make it harder for the other party to entrench entitlements, even when, in the absence of the strategic considerations created by partisanship, members of that party would prefer the entrenchment of neither low taxes nor entitlements.19
Supermajority rule would largely suppress these partisan motivations. Under supermajority rule, measures could not be enacted unless they receive the support of significant portions of both parties. This requirement would largely prevent partisan measures from being passed. It would also require the parties to cooperate to enact provisions, which would lead citizens to focus less on defeating the other side. In this more cooperative environment, citizens would be more likely to focus on their actual interests and those they have in common rather than their party’s.
A third desirable characteristic of a constitution is that it should protect the rights and interests of minorities. When individuals have different intensities of preference, majority rule for the passage of legislation may lead to undesirable results. A majority may enact a measure that they mildly prefer but that is intensely opposed by a minority. For instance, a majority may find some religious practices distasteful and mildly prefer that they be banned. But the minority that engages in these practices may strongly prefer that they be allowed.
A supermajoritarian entrenchment rule would help to address this problem by establishing in some measure a veil of ignorance. Insofar as a veil of ignorance deprives citizens of the knowledge whether they are in the intense minority or the mild majority, citizens gain greater incentives to protect minority rights. A supermajority entrenchment rule helps to create a limited veil, because its requirement of a supermajority both to enact and amend makes it difficult to change constitutional provisions. Because constitutional provisions last for long periods, citizens cannot easily predict whether they and their families will be in the majority or minority on particular issues in the future.20 They therefore have an incentive to protect the vital rights and interests of minorities.21
Court). We agree that this is a problem. See John O. McGinnis & Michael B. Rappaport, The Judicial Filibuster, the Median Senator, and the Countermajoritarian Difficulty, 2005 SUP. CT. REV. 257, 280 (predicting that a supermajority confirmation rule would result in the confirmation of more centrist jurists). But majoritarian entrenchment by the legislature would present a more extreme version of the same problem, because it is likely easier for legislators to coordinate on a present entrenchment than for the President and his party to assure that judges they appoint will do so in the future. 19 It might be argued that parties could avoid the prisoner’s dilemma created by majoritarian entrenchment simply by entrenching a prohibition on matters that the other party would entrench when it came to power. One difficulty with this strategy is that a party cannot necessarily predict the full range of measures the other party will want to entrench and thus faces far more uncertainty in determining what entrenchments to prohibit than in determining what entrenchments to make. For instance, one party may seem to be interested in entrenching health care entitlements. While that entrenchment could be prohibited, a party coming to power might desire to make a different entrenchment. Given the difficulty in blocking the other party’s desired entrenchments, the majority party may decide it is more attractive to entrench an item central to its own party’s ideology. 20 See Michael A. Fitts, Can Ignorance Be Bliss? Imperfect Information as a Positive Influence in Political Institutions, 88 MICH. L. REV. 917, 922–23 (1990) (explaining that less information can help
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2. The Accuracy Perspective on Entrenchments.
We now turn to the accuracy perspective. As we discussed, this perspective employs the model underlying the Condorcet Jury Theorem and assumes that legislators seek the public interest.22 While this model has been used to justify majority rule in the legislature,23 it rests on two important assumptions. First, each legislator must, when he votes, have at least a fifty percent probability of being correct – what we call an accuracy rate. Second, the legislature must vote on as many measures that are in the public interests as are not in the public interest. Here we show why each of these assumptions is unlikely to hold for entrenchment decisions and how supermajority rule can thereby become superior to majority for entrenchments.
First, while the usual Condorcet argument for the desirability of majority rule assumes that legislators have greater than 50 percent accuracy rates, there are good reasons to believe that, under majority rule, legislators will have lower than 50 percent accuracy rates when voting on entrenchments. Under supermajority rule, by contrast, legislators are likely to have higher than 50 percent accuracy rates. Consequently, majority rule is likely to lead to undesirable entrenchments, whereas supermajority rule should lead to desirable ones.
In examining the accuracy rates of legislators, it is important to recognize that they may differ depending on the type of decision being made and the circumstances governing the decisions. First, if certain laws are especially hard to evaluate, then accuracy rates will be lower for these laws than for others. Even for a single type of law,
overcome stalemates by avoiding politically contentious issues and reducing self-interest in the decisionmaking process). 21 While a majority entrenchment rule would also help to establish a veil of ignorance, it would not function as well as the supermajority rule entrenchment rule. A majority entrenchment rule would also help to establish a limited veil, because entrenched provisions passed by a majority would still require a supermajority to amend. But a supermajority entrenchment rule would be superior, because the majority entrenchment rule would produce the undesirable consequence of allowing a majority to threaten to pass problematic entrenchments in order to secure the repeal of an existing entrenchment that the current majority disliked. To illustrate this problem, assume that the existing majority lacks the supermajority of votes needed to repeal an existing constitutional provision. That majority, however, does have the power to pass a new entrenchment. To secure the additional votes necessary to repeal the constitutional provision from those who are opposed to its repeal, the majority could threaten to entrench another measure that is disliked even more than the repeal of the existing entrenchment. If this threat succeeded, it would reduce the extent to which constitutional provisions are entrenched. But even if it did not always succeed, it would create a situation where the passage of constitutional amendments was could be used as a bargaining chip in an effort to secure repeal of existing amendments. Such political games can only undermine the public’s allegiance to the constitution. 22 For a discussion of the reasons for taking this view of democracy seriously, see David Estlund, Beyond Fairness and Deliberation: The Epistemic Dimension of Democratic Authority, in DELIBERATIVE DEMOCRACY 173, 194–98 (James Bohman & William Rehg eds., 1997) (describing how, in Epistemic Proceduralism, the agency of the public “has a duty to do what seems right from the public point of view” in order to produce an outcome that the public has a moral reason to obey). 23 See supra notes xx and accompanying text. Here we assume that under either majority or supermajority rule legislators have some shared view of the public interest.
12 legislators may have different accuracy rates depending on whether they are voting on a good or bad law. For example, if legislators are especially prone to pass a certain type of law, they may have a high accuracy rate for good laws – that is, they are very likely to vote for a good law – but a low accuracy rate for bad laws – that is, they are unlikely to vote against a bad law. Finally, legislators may have different accuracy rates under different voting rules. As we argue here, different voting rules may generate forces that affect the accuracy rates of legislators.
There are at least three reasons why legislators are likely to have a lower than fifty percent accuracy rate when they vote on entrenchments under majority rule. First, individuals face a heuristic problem in evaluating the future: They are too disposed to believe that existing patterns will continue long into the future.24 This heuristic appears to be one of the causes of financial bubbles in the stock and housing markets. It can obviously reduce the accuracy rate for bad entrenchments. For example, legislators may enact entrenchment that makes sense under current conditions, but not in the future as circumstances change. More subtly, the heuristic can also reduce the accuracy rate for good entrenchments. Legislators will be too likely to believe that entrenchment of a norm is unnecessary because there are no current threats to the norm. For instance, in a period of financial stability, legislators might not appreciate how strong pressure for destructive debt abrogation legislation can be during harder economic times. 25
Second, the public can rarely appropriately assess the beneficence of entrenched legislation until their legislative representatives are long gone from office. The desirability of entrenched legislation does not turn merely on its immediate effect, but also on its longer run effects in changed circumstances. If the public cannot determine the accuracy of their legislators' decisions until they are out of office, the legislators will be under less pressure to reach good decisions and their accuracy rates will fall for both good and bad entrenchments.26
24 The “representativeness” heuristic tends to make people extrapolate overconfidently about predicted characteristics of a class based upon a small sample size of which they happen to be aware. See AMOS TVERSKY & DANIEL KAHNEMAN, BELIEF IN THE LAW OF SMALL NUMBERS (1971), reprinted in JUDGMENT UNDER UNCERTAINTY: HEURISTICS AND BIASES 23, 24–25 (Daniel Kahneman et al. eds., 1982) (theorizing that most people have strong intuitions about random sampling resulting in the incorrect belief that every segment of a sample will be representative of the whole). If the sample consists of events rather than objects, the heuristic should tend to make people extrapolate in a similarly irrational manner from events of which they are aware to uncertain future events. Thus, individuals will tend to think that future events will resemble past events more than probability warrants. See Kenneth J. Arrow, Risk Perception in Psychology and Economies, 20 ECON. INQUIRY 1, 5 (1982) (suggesting that in the context of bond and stock markets, people tend to react excessively to current information when attempting to predict future events). For an important present-day application, see ROBERT J. SHILLER, IRRATIONAL EXUBERANCE 144 (2000) (using work on the representativeness heuristic to suggest that people will think stock market patterns today will be those of tomorrow). 25 Cf. U.S. CONST. art. I, § 10, cl. 1 (prohibiting states from “impairing the obligation of contracts”). 26 Here we posit that there is an optimal level of accountability that promotes the highest accuracy rates for legislatures. The legislative process for entrenching measures, however, departs from that optimal level. Too little accountability lowers accuracy rates, because legislators, being only human, will be less disciplined in their judgments and make more errors. On the other hand, too much accountability can also lower accuracy rates, because legislators will no longer exercise independent judgment on the basis of the better information that is available to them for fear that citizens will not reelect them on the basis of their
13
Third, partisanship is likely to reduce accuracy rates for many of the same reasons it is likely to distort decisions under the preference approach. When legislators can enact measures under majority rule, they often support legislation based on the identity of its supporters rather than on its merits. They do this because they have rational reasons to further their party, which can provide them with benefits, and emotional reasons to act for their side and against those who oppose their concerns. This partisan bias lowers the accuracy rates both for good entrenchments and for bad entrenchments.27
While these three reasons suggest that legislators will have low accuracy rates under majority rule, there are strong grounds to believe that supermajority rule will operate to raise accuracy rates. Supermajority rule can do this either by directly addressing the problems under majority rule or by raising accuracy rates in other ways. For partisanship, supermajority rule operates by directly addressing the forces that have lowered the accuracy rate. A more inclusive voting rule will make it difficult, if not impossible, for one party to entrench without assistance from the other party. A more inclusive voting rule will make it difficult, if not impossible, for one party to entrench without assistance from the other party. The need for each party to cooperate with the other party will give legislators less incentive to promote party interests. The likelihood that the parties will cooperate will also descrease their emotional aversion to one another. Consequently, the accuracy rates both for good and bad entrenchments should increase.
Supermajority rule does not correct directly for the heuristic problem or increase pressure for accuracy that legislators in assessing provisions that will endure. Instead it creates other forces that increase the accuracy rate for entrenchment. First, as discussed in the preference section, supermajority rule for entrenchment helps establish the conditions for a beneficial veil of ignorance. Because entrenched provisions cannot easily be repealed and therefore endure for long periods, citizens cannot readily know how these provisions will affect them in particular in the future. Consequently, they are more likely to consult how these provisions will affect citizens generally – that is, how it will affect the public interest. For example, because people will not know whether future Presidents will be from their party or the opposing party, they will allocate presidential powers based on the allocation that would support the public interest rather than based on the President’s identity or partisan affiliation.
Second, a supermajority rule is likely to raise accuracy rates by restricting the legislative agenda. Because of the higher hurdle for supermajoritarian passage, fewer inferior information. Thus, the best accuracy rate comes when legislators are neither let loose by the voters nor are kept on too short a leash. The long-term effects of entrenchment make it much harder for the legislative system to achieve this happy medium with entrenchment than with ordinary legislation. 27 A related danger is that aberrational elections can lower the accuracy rate. A party may take office because of a scandal, like Watergate, or some other unique event, and proceed to entrench legislation on matters that are unrelated to the reason for its election. Irrational majorities are likely to have a bias in favor of entrenching bad legislation. Because they recognize that they may lose their majority in the future when the fallout from the scandal subsides, they even likely to focus on entrenching matters that ordinary majorities would not deem in the public interest.
14 entrenchments will be seriously considered and put up for a vote.28 But those that gain a place on the legislative agenda will consequently receive more attention from legislators, the press, and the public.29 This greater scrutiny should raise accuracy rates as well.
Although accuracy rates for entrenchments under majority rule are likely to be less than fifty percent, a supermajority rule for entrenchment can still be beneficial if the rates are over fifty percent. If the legislature votes on more bad than good measures – and thereby violates the second basic assumption of the accuracy model – supermajority rule may be beneficial. Supermajority rule blocks the passage of more measures than does majority rule. If the set of measures that are voted upon contains more bad than good measures, then the measures blocked by supermajority rule are more likely to be bad ones. Here we argue that the legislature in fact is likely to consider substantially more bad than good entrenchment proposals.30
Even for ordinary legislation, we suspect that most proposals voted upon are bad. First, the set of legislative ideas, from which measures that are voted upon are selected, is likely to contain mainly bad ideas. It takes substantial intellectual effort to come up with a good idea. Moreover, the set of public policy ideas contains many contradictory proposals (such as requiring spending and preventing spending) and even two contradictory proposals can both be bad. Second, as we have discussed more fully elsewhere,31 the process for bringing legislative proposals to the floor is not likely to be terribly good at screening bad from good proposals. Legislative committees tend to be influence by special interests and their small numbers reduces the benefits that the Condorcet model relies on to generate desirable group decisionmaking. 32 Finally, the
28 In fact, under the U.S. constitutional system, “only thirty-three proposals have been approved and sent to the states for ratification.” See CONGRESSIONAL QUARTERLY’S GUIDE TO CONGRESS 360 (2000). 29 One might think that the double supermajoritarian rule that exists in our Constitution increases the power of this effect. The Constitution requires that constitutional amendments be proposed by either two- thirds of both houses of Congress or by two-thirds of the legislatures of the states and be ratified by three- quarters of the legislatures or by conventions in three-quarters of the states. U.S. CONST. art. V. Very few constitutional amendments are proposed by Congress and sent to the states for ratification. This restricted agenda assures substantial scrutiny of the proposals and a rich stream of information about their merits, raising the accuracy rate of the state legislators who are to consider them. 30 We have elsewhere described a final reason for supermajority rule under an accuracy model: supermajority rule can function as an efficient form of insurance. See McGinnis & Rappaport, Three View of the Capitol, supra, note x, at 1177. Citizens may be uncertain of the accuracy rates for a particular category of legislation, like entrenchment. If they believe the accuracy rates are on average likely to be higher than 50 percent but believe there is a nonnegligible chance that they will fall below 50 percent, they may employ supermajority rule to reduce the risk of very bad results in the latter circumstances even for ordinary legislation. The risk experienced by citizens regarding the enactment of constitutional provisions and the corresponding need for insurance is likely to be higher in the entrenchment context than in the context of ordinary legislation, because entrenched provisions are generally more important and have a greater effect than ordinary statutes. Thus, the passage of a bad entrenchment will be worse than the passage of a bad statute just as the passage of a good entrenchment will be better than the passage of a good statute. Therefore, those stakes provide an even stronger rationale for citizens to obtain the insurance provided by supermajority rule for entrenchment than for ordinary statutes. 31 See Three Views of the Capitol at 1166-1168. 32 Even under these circumstances, majority rule still aggregates information better than supermajority rule, but this aggregation effect can be outweighed by the large ratio of bad to good proposals. It is particularly likely to be outweighed if one is realistic about the limited extent of the aggregation effect in legislatures
15 proportion of good entrenchment proposals is likely to be much lower than the proportion of good proposals for ordinary legislation, because so few provisions should be entrenched against the vicissitudes of future change.33 Given this imbalance, supermajority rule will likely be better than majority rule because of its superior blocking ability.
Thus, under either a preference or accuracy view of legislative voting rules, there is a strong case that supermajority rule corrects the defects of majority rule in the entrenchment context.34
3. Supermajority Rules and Good Entrenchments
So far our discussion has emphasized the way supermajority rule corrects for the defects in majority rule for the entrenchment. While this analysis shows the advantages of supermajority over majority rule in this context, it might be questioned whether it demonstrates that supermajoritarian entrenchment produces good entrenchments rather than merely better entrenchments than majority rule.
But our previous discussion does suggest that supermajoritarian will lead to good results. First, majority rule is very widely thought beneficial for ordinary legislation. If supermajority rule, as we have argued, corrects for the defects of generally beneficial majority rule in the entrenchment context and does not introduce other substantial defects, it is likely to be beneficial in this context. The potentially largest defect of supermajority rule is blocking potentially good entrenchments. Because the magnitude, if where legislators vote in factions rather than independently. Thus, for instance, in most advanced democracies with proportional representation, a half dozen parties are represented in the legislature and vote as a bloc. In the United States, there are two principal parties, but they are split into a few factions. Under those conditions, only the factions should be treated as independent decisionmakers. Thus, the number of independent decisionmakers is much smaller than the nominal number of members in the legislature as a whole or on a committee. With only a small number of effective decisionmakers, majority rule will not prove much superior to supermajority rule even if the legislator votes on an equal amount of good and bad entrenchments. Given that the Condorcet effect of aggregation is likely to be moderate because of the small number of decisionmakers, the ratio effect is likely to predominate. See Three Views of the Capitol, 1162-1164; The Condorcet Case for Supermajority Rules at 7. 33 We have reviewed all such proposals introduced in Congress, see infra notes xx, and it is our impression that bad proposals outnumber good one by a very substantial margin. 34 Supermajority rule is also good for generating the desirable constitution because it is likely to produce provisions seen as a reasonable compromise. Each person in a nation can imagine a constitution that they believe would either be desirable or would best suit their interests. But, obviously, they will not be able to secure such a constitution. People nonetheless will support a constitution, even if it departs from their preferred version, if they believe that this compromise takes their interests or values into account and is the best one that could be agreed to under the current situation. A supermajority rule will be the best way of promoting this value of having a publicly recognized reasonable compromise. It might be thought that individuals can determine whether a particular constitution represents a reasonable compromise, but self-regard would often lead individuals to believe that a fair compromise would give them more than it actually would. By contrast, the process of supermajoritarian approval produces a reasonable compromise that derives from a fair procedure witnessed by the entire nation. A system that employed majority rule would also generate a specific result, but hat result is unlikely to be viewed as a desirable compromise. For the reasons we have discussed, majority rule is unlikely to produce a desirable constitution, including one that is supported by a consensus.
16 any, of this defect is so related to stringency of the supermajoritarian rule one chooses, we discuss it in the context of the rules for originating and amending our own constitution and conclude that it is not very substantial in this context.35 One important reason of course is our view that good entrenchments need to represent consensus and compromise.36
Second, our previous discussion shows why supermajority rules by their nature pick out beneficial entrenchments. Beneficial entrenchments must reflect bipartisan consensus, recognize the importance of a changing world, and be open to protecting minorities. We have show that supermajority rules are designed to foster bipartisan consensus, compensate for our all too human difficulties in evaluating the future, and help protect minorities. Thus, supermajority rules are well designed to produce elements that make entrenchment good.
C. Symmetry between Originating and Repealing Supermajoritarian Provisions
A desirable constitution also has at least a rough symmetry between the process for generating constitutional provisions, including those at its origination, and the process for repealing the provisions. The reason is straightforward. Each generation should have the same formal opportunity to determine the constitutional provisions under which it should live.37 Thus, if a constitution requires a two-thirds vote of the legislature to pass a constitutional provision, it should require a two-thirds vote to repeal it.
As we discuss at greater length in our section on the dead hand and the constitution,38 it is this formal symmetry that counts, whether or not one believes the constitution cannot guarantee each subsequent generation the same actual power of changing or repealing constitutional provisions. If a constitution creates prosperity and good governance, subsequent generations are less likely to repeal its provisions because of the benefits they enjoy. But that is an advantage to subsequent generations, not a cause for complaint.
35 See infra notes xx and accompanying text. 36 One argument that might be made against the beneficence of the product of supermajority rules is that the status quo might be so bad that supermajority may not operate to create good provisions. We do not think that this is an important argument with the respect to the United States. The prosperity and freedom of the people of the United States (with the important exception of those enslaved) must rate very highly as compared to the people of other nations throughout the world at that time. See ALICE HANSON JONES, THE WEALTH OF A NATION TO BE; THE AMERICAN COLONIES ON THE EVE OF REVOLUTION (1980) (concluding that the Americans were relatively wealthier than Europeans of the time). But even if the status quo were bad it does not follow that supermajority rules could not create a constitution that improved matters and created as sound a basis as possible for constitutionalism at that time. Assuming that such a Constitution included a reasonable amendment process, which is a condition for a desirable constitution, amendments could passed to improve the Constitution as conditions improved. As we discuss below, see infra notes xx and accompanying text. that may indeed have happened with respect to the one very bad aspect of the status quo of 1789—slavery. 37 We provide other reasons for the presumption of symmetry in John O. McGinnis & Michael B. Rappaport, Symmetric Entrenchment: A Constitutional and Normative Theory, 89 VA. L. REV. 385, 427- 429(2003). 38 See notes xx infra and accompanying text.
17 D. Original Methods Originalism as the Appropriate Interpretive Method for the Desirable Supermajoritarian Constitution
It is appropriate to interpret the desirable constitution according to methods the enactors of the constitution expected to be applied to its construction. The reason is straightforward. The beneficence of the desirable constitution derives from the consensus support it gained among the enactors. In considering whether to support the constitution, the enactor would have voted for or against the constitution based on how he or she thought it should be interpreted. The series of interpretations the enactor expected are part of the stream of benefits (or costs) of the constitution and are thus part of the calculation that went into the decision to support it. Using the original interpretive methods of the enactors thus helps preserve the beneficial meaning of the provisions.39 Accordingly, the appropriate mode of constitutional interpretation is “original methods originalism.” 40
Our approach sharply contrasts with two other approaches to choosing interpretative rules. One would have constitutional interpreters choose interpretive rules with a view to obtaining the best policy results or the best values.41 As we discuss at length below, judges are unlikely to be able choose good policies relating to entrenchment because of informational and other deficits inherent in the structure of the judiciary. Others suggest using a set of interpretive rules that they believe best captures linguistic meaning from a philosophic standpoint. But the enactors may not have shared the favored gloss of today’s philosophers. 42 In any event, using either policy-oriented or philosophy-based interpretive rules rather than the enactors’ own rules severs the meaning of the Constitution from the process responsible for its beneficence.
When we look at the United States Constitution, we suggest that our original methods originalism incorporates much of what passes for originalism as conventionally understood, because the enactors of our Constitution generally believed that the original meaning of the words of the Constitution would be controlling.43 Original methods orginalism in our own historical context adds only that the Framers’ interpretive
39 Thus, our analysis provides a stronger response than social contractarian theories to the fundamental question of “why should modern judges prefer the views of the Framers and the Ratifiers of the Constitution.” See Michael C. Dorf, Integrating Normative and Descriptive Theory: The Case of Original Meaning, 85 GEO. L. J. 1765, 1771 (1997). Professor Dorf is right to suggest that even if social contractarians can show that originalism is legitimate, its legitimacy does not necessarily privilege it over other modes of constitutional interpretation. In this article we show something stronger: that originalism is likely to have better consequences than these other methods. 40 Our defense of the using the original enactors’ interpretative rules is thus not based on the circular argument that we should follow the intentions of the Framers, because that is what they wanted or their more subtly circular argument that a failure to follow their understanding of their provisions would result in judicial usurpation. See PHILIP BOBBITT, CONSTITUTIONAL INTERPRETATION 25 (1991). (“One would not be persuaded by such an argument unless already believed that the intentions of the Framers were responsible for empowering the officials of government”). 41 See, e.g. Trevor Morrison, Constitutional Avoidance in the Executive Branch, 106 COLUM. L. REV. 1189, 1217 (2006). 42 See, e.g, Lawrence Solum, Constitutional Texting, 44 SAN DIEGO L. REV. 123 (2007). 43 See infra notes xx and accompanying text.
18 principles should be used to resolve any ambiguities in the Constitution. 44
III. The Compliance of the United States Constitution with the Origination and Amendment Supermajority Rules of the Desirable Constitution
In this section, we show that formal rules for creating the United States Constitution are in large measure those of a desirable constitution. First, we show that these rules-- both Article VII which regulates the ratification of the original Constitution and Article V which regulates its amendment-- are the kind of supermajority rules contemplated by the desirable constitution. Second, we show that these rules are generally of the approximately correct strictness to permit good constitutional provisions and yet prevent bad ones. The one potential problem with the rules is the inability of the people easily to respond to judicial updating of the Constitution: that can be solved, however, by adherence to orginalism. Finally, we show that that there is a rough symmetry between the rules of Article VII for originating the Constitution and those of Article V for amending the Constitution, thus permitting each generation to have input into the Constitution under similar formal rules.
A. The Supermajority Rules for Creating and Amending the Constitution
The formal rules for creating and amending our Constitution are supermajoritarian. And not only are they supermajority rules but they are also relatively stringent supermajority rules. Thus, they help create the consensus, veil of ignorance, and deliberation that we have identified as the cardinal virtues of a desirable constitution making process. While we deal with complications throughout this section, at this simple level, it is not much to say that the formal rules for creating the United States Constitution are those for a desirable constitution making process. 45
The supermajoritarian nature of the Constitution is most obvious in Article V.46 The Constitution requires two thirds of the members of Congress to propose a constitutional amendment or two thirds of the state legislatures to propose a constitutional convention. It then requires three quarters of state legislatures or three quarters of state conventions to ratify any amendment. Thus, amendments must surmount a double supermajority
44 But original methods originalism is not analytically necessarily coextensive with what is conventionally understood as originalism. The appropriate method of interpretation is what a reasonable enactor expected to applied. While we have offered reasons elsewhere that risk averse enactors choosing under a veil of ignorance would likely choose a form of originalism as conventionally understood, see John O. McGinnis & Michael B. Rappaport, Interpretive Rules as the Core of Originalism (forthcoming Constitutional Commentary 2007) the rules of interpretation for an actual constitution cannot be derived absolutely from the structure of an desirable constitution. Instead, the particular interpretive rules of a constitution depend on the historical context, because only from that historical context can one understood what a reasonable enactor would have understood those rules to be. 45 We recognize that there are some serious process defects in the Constitution’s compliance with the desirable rules for constitution making. African Americans and women were excluded and states rather than individual are made the basis of representation for some parts of the process. We address these problems at length at notes xx and accompanying text. 46 U.S. CONST. Art. V
19 requirement, ensuring consensus and deliberation.
Article VII — the origination clause of the Constitution — required nine of the thirteen states to ratify the Constitution. As we argue below, the Constitution also had effective supermajoritarian support in the Continental Congress endorsing the call for the Constitutional Convention. Thus the origination of the Constitution also followed a substantial double supermajoritarian requirement.
Akhil Amar has suggested that the ratification process for the original Constitution was majoritarian because the state conventions ratified the Constitution by majority vote.47 We agree that state convention votes were majoritarian, but nevertheless the effect of the ratification requirement of nine states was supermajoritarian. In a complex democratic system, rules can contain majoritarian elements and yet their overall effect can be supermajoritarian. For instance, Senators are elected by a majority in each state and yet no one would doubt that the requirement that a treaty receive two thirds vote for advice and consent is supermajoritarian.48 So it is with the ratification of the Constitution.
Not only does the ratification rule for the Constitution comply with the theory of the desirable constitution in an abstract sense, but we can also see how it was responsible for the key provisions of our Constitution that had have been admired here and around the world. Most obviously, to gain ratification of the Constitution under pressure from the Antifederalists the Federalists had to agree to provide the Bill of Rights.49 At the Convention the nationalists had to compromise with those interested in more local autonomy and the result was federalism.50 Supermajority rules led directly to the cornerstone of our nation’s governance. Moreover, the compromise on the Bill of Rights led the Constitution to enjoy even more widespread support than that simply indicated by the affirmative votes it received in the ratification conventions.
More generally, the Constitution of 1789, despite serious flaws, has received praise not only from Americans but foreign observers. For instance, William Gladstone wrote of it: "The American Constitution is, so far as I can see, the most wonderful work ever struck off at a given time by the brain and purpose of man."51 The supermajoritarian origins of the Constitution explain that “the brain and purpose” that generated it was the collective consensus of the nation. The Constitution was not simply the creation of a few great Americans but instead represented much of the distilled essence of America..
B. The Reasonable Stringency of the Constitution’s Supermajority Rules
47 See Akhil Reed Amar, The Central Meaning of Republican Government: Popular Sovereignty, Majority Rule and the Denominator Problem, 65 U. COLO. L. REV. 749, 774 (1994). 48 U.S. CONST. Art. II, sec. 2, cl. 2. 49 See LEONARD LEVY, EMERGENCE OF A FREE PRESS 234-35 (1985) (describing the Bill of Rights as tactical compromise between Federalists and Anti-federalists). 50 See Martin Diamond, What the Framers Meant by Federalism, in AMERICAN INTERGOVERNMENTAL RELATIONS 39, 43-44 (Laurence J. O’Toole, Jr. ed., 2d ed. 1993) (seeing American federalism as a compromise between nationalists and true federalists). 51 As quoted in MICHAEL G. KAMMEN, A MACHINE THAT WOULD GO OF ITSELF 162 (1986).
20
In this section we show, with one caveat and one possible qualification, that the supermajority rules for making our Constitution are of reasonable stringency. While it is here neither possible to describe that stringency with mathematical precision nor to show formally that the United States Constitution complies with that standard, we offer some informal evidence for its reasonable stringency. The strongest argument (our caveat) that the amendment process is too stringent derives from the the temptation these rules provide judges to interpret the Constitution in a nonoriginalist way and the obstacle the amendment process puts in place of overruling the fruits of their temptation. But this problem underscores one of the principal points of this article: originalism is the appropriate method of interpreting our Constitution, cohering with the stringency of Article V. The possible qualification is that fear of a runaway convention may make it effectively impossible to amend the Constitution by means other than congressional proposals, thus impeding amendments to rein in Congress’s power.
For originating a constitution, a supermajority rule should be stringent enough to generate good provisions that enjoy consensus and has the other virtues we have identified. Yet it should not be so stringent that it prevents a beneficial constitution from coming into being. We have already said enough about the product of Article VII to suggest that it created a beneficial constitution for its time as well as amendment process that could correct its serious defects, and to show that the supermajority rules were crucial to generating that result. The origination process also does not seem too stringent, because we know ex post that it did not prevent such a constitution from being created.
The appropriate stringency of an amendment process must balance two considerations. On one hand, it must be stringent enough to prevent bad provisions from being added to the Constitution in moments of passion or accident.52 In particular, it must be stringent enough to prevent good provisions of the Constitution from being easily repealed. If a majority or even a little more than a majority could amend the Constitution, it would no longer represent a document created by consensus and would not offer a stable framework for governance. On the other hand, the amendment process must be lenient enough to permit the Constitution to make new provisions or to repeal defective old ones, particularly when necessary to address technological or social change.53
It is impossible here to review all the amendments that have been proposed and yet failed, and then show that marginal amendments-- those amendments that had majority support but not the substantial supermajoritarian support required by the Constitution-- would have been bad ideas, but this is our conclusion, having reviewed them all.54 Certainly in the modern era, the amendment that has come perennially close to
52 As James Madison himself stated, Article V “guards against . . . . the extreme facility, which would render the Constitution too mutable.” See THE FEDERALIST No. 43, at 246 (Rossiter, ed.). 53 Id. at 246 (the amendment process also guards against “the extreme difficulty which might perpetuate its discovered faults”). 54 For a record of amendments, see Herman V. Ames, PROPOSED AMENDMENTS TO THE FIRST HISTORY OF THE CONSTITUTION, 1789-1889 (1897); Proposed Amendments to the Constitution of the United States of America: Introduced from Dec. 4, 1889 to July 2, 1926, SEN. DOC. 69-53 (1927);Proposed Amendments to th th the United States Constitution to the 69 Cong. 2d Sess. To 87 Cong. 2d Sess, SEN. DOC. 87-163 (1943);
21 passing is the amendment against flag burning.55 It seems that even a slightly less stringent amendment process would have permitted this amendment to pass, despite the fact that it appears to be a narrow and parochial piece of legislation that represents position taking rather than an attempt to solve a real problem.
In contrast, the amendment process has not been too stringent to prevent very substantial changes in our system of political governance. The 13th, 14th, 15th, 16th, 17th and 19th amendments made huge changes in the governance or our polity. It is difficult to say that an amendment process that allowed for such changes is obviously too strict. In particular, it should be noted that in ratifying the 17th amendment permitting the direct election of Senators, the state legislatures approved an amendment that eroded their power.56 In proposing and ratifying the 19th amendment for women’s suffrage, Congress and state legislatures representing only men approved an amendment that would dilute the power of those they represented.57 Such amendments show that social and technological change can generate the consensus required by Article V to make necessary transformations of the Constitution even when they strike at interests powerfully vested in the amendment process itself.
Nor has Article V been too strict to prevent less politically significant amendments that nevertheless advance good government. In this regard, good examples are the 20th amendment, which shortened the duration of the lame duck portion of the President’s term and the 25th amendment which improved the process of presidential succession.58 The amendment process has also permitted quick repeal of the one amendment that proved disastrous. The 21st amendment, the Constitution’s merriest, repealed the 18th amendment which had been ratified only fourteen years earlier.59
The most obvious rejoinder is that the amendment process has been too strict because other necessary changes—from the right to privacy to greater power for the federal government to address problems of economics and the environment—could not have been derived from the original understanding of the Constitution, and yet the constitutional amendment process failed to enact them.60 In this story, the Court saved the
Proposed Amendments to the United States Constitution from 88 Cong. 1st Sess. To 90 Cong. 2 Sess., st st SEN. DOC. 91-38 (1950); Proposed Amendments to the United States Constitution from 91 Cong. 1 Sess. th To 98 Cong. 2d Sess., CONG. RES. SERV. REPT. 85-35 (1985); Proposed Amendments to the United States st Constitution from 91 Cong. 1 Sess. To 101 Cong. 2d Sess., CONG. RES. SERV.REPT.92-555 (1992). 55 The proposed amendment passed the House. See H.R.J.Res. 10, 109th Cong., 151 Cong.Rec. H4927-28 (enacted) (June 22, 2005). It failed by one vote in the Senate. See S.J.Res. 12, 109th Cong., 152 Cong.Rec. S6546 ) (rejected). (June 27, 2006) 56 U. S. CONST. Amend. XVII. 57 U.S. CONST. Amend. XIX. 58 U.S. CONST. Amends. XX & XXV. 59 U.S. CONST. AMENDS. XVIII & XXI.. 60 See Donald S. Lutz, Toward a Theory of Constitutional Amendment, in RESPONDING TO CONSTITUTIONAL IMPERFECTION: THE THEORY AND PRACTICE OF CONSTITUTIONAL AMENDMENT 237, 273 (Sanford Levinson ed.1995) (“A relatively difficult amendment process will tend to be associated with a broad theory of judicial construction, one in which the court has few if any restrictions on how it justifies its decisions, and an easy amendment process will be associated with a narrow theory of construction").
22 day by interpreting the Constitution in a flexible way to permit its updating.61 This analysis, however, has the story backwards. As we describe below with examples, like the Equal Rights Amendments, it has been the Court’s attempt to anticipate the results of the amendment process through judicial updating that frustrated the proper working of that process.62 If the Court interpreted the Constitution in an originalist manner support would develop over time for necessary changes actually supported by consensus.
Moreover, in the absence of judicial updating we would have a stronger culture of citizen participation in the amendment process. In contrast, the more the judiciary intervenes to create new constitutional rights and structures to address new problems the less populist constitutional culture becomes. Without judicial updating, citizens would also have more confidence in amending the Constitution, because they could more easily rely on the consensus crystallized into text. Citizens are more likely to enter into agreements with one another in the amendment process if they can be sure that these agreements will be enforced according to their terms.
It is true that citizens have trouble incentivizing the Court to follow originalism because of the difficulty of overruling the Supreme Court through a constitutional amendment. Even if the Court updates the Constitution through new normative principles that do not command a consensus, it does not follow that the opposition to these principles commands a consensus either. As a result, a nonoriginalist Court can choose strategically the norm it prefers so long as that norm does not offend a substantial supermajority of citizens. Thus, paradoxically, the strongest argument against the strictness of the amendment process is not that it requires the Supreme Court to use nonoriginalist principles to update the Constitution, but that it facilitates the Court in using nonoriginalist principles to impose its own normative preferences and impedes the people themselves from effectively using the constitutional amendment process itself. But as we suggest below,63 the enactors anticipated originalist constitutional interpretation, not judicial updating. Under their interpretive rules, the amendment process remains appropriately stringent.
One possible defect in Article V is the process by which states are to call for a constitutional convention –the alternate to the usual route of Congress’s proposing amendments. A process for passing amendments that bypasses Congress is necessary so as to enact necessary additional constraints on Congress.. The difficulty with the process the Constitution has chosen—calling a convention—is that the Framers did not include rules that clearly prevented a runaway convention that would scrap the entire Constitution.64 Precisely because the Constitution has been so successful, that fear paralyzes its use by risk-adverse citizens so much so that there has never been a
61 But others have noted that lenient amendment processes are also used as a justification for judicial activism, because the less strict process allows citizens to respond to judicial activism. See A.E. Howard, State Courts and Constitutional Rights in the Day of the Burger Court, 62 VA. L. REV. 873, 939 (1976) 62 See infra notes xx and accompanying text. 63 See infra notes xx and accompanying text. 64 Indeed some scholars assert that such rules would be repugnant to Article V. See Michael Stokes Paulsen, A General Theory of Article V: The Constitutional Lessons of the Twenty-seventh Amendment, 103 YALE L. J. 677, 742 (1993)
23 constitutional convention called in 218 years.65
It is important to note that this possible defect infects only provisions that provide power to Congress and perhaps to the federal government as whole. Thus, any normative implications concern only efforts to restrict these powers. The failing of the convention process does not contribute to any inappropriate stringency in adding powers to Congress or in amendments that are not related to congressional authority. Thus, in the history of constitutional interpretation, this defect has played only a relatively small role because relatively few cases have involved attempts to limit Congress’s powers. 66
C. The Rough Symmetry between Origination and Amendment
Article V requires a two thirds vote of members of Congress to propose an amendment and a three quarters vote of the states either through legislatures or conventions to ratify one. For constitutional provisions passed through the amendment process, there is a clear symmetry between the rules for passage by repeal, since constitutional amendments are now the route to both. Here we show that the supermajority rules involved in originating the Constitution also provides a rough symmetry with the double supermajoritarian process of Article V.
Article VII on its face required only a single vote for ratification of the original Constitution—passage by nine of the thirteen original colonies or a nine-thirteenths supermajority. Considered in more detail, however, the ratification process for the original Constitution also required a double supermajority vote—not unlike the amendment process. The reason that Article VII, unlike constitutional amendments, required only one vote was that the Constitution was written in the middle of its own ratification process. The constitutional convention responsible for drafting the Constitution had already been approved by twelve of the thirteen states (and endorsed by Congress as well).67 A strong consensus of the states was necessary to prompt a convention. By contrast, the early Annapolis Convention had received the support of
65 There is an argument that much of the fear of runaway convention is not rational, because the proposals of any convention would still have to surmount the hurdle of three quarters of the states legislatures to be enacted. See Ronald M. Rotunda & Stephen F. Safranek An Essay on Term Limits and a Call for a Constitutional Convention, 80 MARQUETTE L. REV. 227, 239 (1996). The fear of the runaway convention nevertheless persists, in part because of the possibility that the Convention will propose and succeed in using alternative means of ratification. 66 The notable recent examples of provisions that try to rein in members of Congress were term limit passed by state constitutional referenda that the Court evaluated in U.S. Term Limits v. Thornton, 514 U.S. 1842 (1995). The likelihood of Congress’s proposing a term limits amendment itself may seem as improbable as turkeys voting for Thanksgiving. Thus, given that it may be difficult to amend the Constitution to impose term limits, it conceivable that the Court would have been more justified in updating the Constitution according to nonoriginalist principles. It is not at all clear that this would have been justified, because, as we discuss, the process of updating may cause more problems that is solves. But this view is contrary to received wisdom. The structure of the constitutional amendment process does not stand in the way of expanding the power of the federal government to take account of the changes in the modern world, but may block appropriate constraints on the power of members of Congress, as with term limits. 67 See CATHERINE DRINKER BOWEN, MIRACLE AT PHILADELPHIA: THE STORY OF THE CONSTITUTIONAL CONVENTION, MAY TO SEPTEMBER, 1787, at 13 (2d ed. 1986)
24 only five states and had failed. 68
Thus, the call for the Philadelphia Convention approximated the strength of the consensus of proposed constitutional amendments. Nevertheless, it was not exactly the same, because the Convention was not called under a formal rule. Indeed, the only rule about amending the Articles of Confederation called for unanimous support for amendments, 69and the call for convention fell short of unanimity, thus raising questions of legality under the Articles. The lack of formality and consequent uncertainty about just how many states were required to call the Philadelphia Convention is certainly a departure from the desirable: the degree of consensus is best measured by a clear, preexisting rule, because political actors’ votes may change depending on what the rule is. Nevertheless, given the near unanimity for endorsing a call for the constitutional Convention, it seems pretty clear that a convention proposal would have received support under a rule requiring two-thirds of the states to assent.
The slight discrepancy between three quarters ratification requirement in Article V and the nine-thirteen rule in Article VII is an insignificant departure from the desirable of symmetry. Given that there were a fixed thirteen states in the electorate, there was no number that would be represent precisely three-quarters of the former colonies and nine of thirteen was one of the two closest ratios to three quarters. 70
One final difference is that even with formally similar rules large states wielded more power under the original process for making the Constitution than they do under today’s amendment process. For instance, it is doubtful that the Constitution could have gotten off the ground, if New York, Massachusetts and Virginia had all refused to ratify even if other states had provided the formal approval.71 In contrast, today in our stable republic amendments would be effectively ratified, regardless of the size of the states in the ratifying coalition. The effective additional weight of larger states at the time of the Framing is not very problematic. Indeed, the additional weight served as a corrective to the defect of voting by states, rather than by people—a defect we discuss below.
We should note that one clear departure from symmetry is the one provision that is specially protected against repeal—the provision that prohibits the amendment of states’ equal representation in the Senate. Whether this provision cannot be amended at all or
68 See CLINTON ROSSITER, 1787: THE GRAND CONVENTION 54-55 (1966). 69 ARTICLES OF CONFEDERATION XIII. 70 Moreover, it was reasonable that the Framers would have chosen the lower of the two proximate numbers, because Rhode Island, the smallest state, seemed to be holding itself aloof from the entire process. It has previously vetoed amendments under the Articles of Confederation, had refused to endorse the call for the convention, and refused even to send a delegation to deliberate at the Philadelphia. Thus, its fellow former colonies could have been legitimately uncertain whether Rhode Island should have been considered in the electoral pool. Another way of looking at the Framers’ choice is that they chose nine states, because that was the number of states that required for important decisions under the Articles of Confederation, see AKHIL REED AMAR, AMERICA’S CONSTITUTION: A BIOGRAPHY 311(2005). In that case the three quarters requirement in Article V was chosen as the closest round fraction to reflect the proportion of states required for ratification in Article VII rather than the other way around. 71 Cf. Kent Greenawalt, The Rule of Recognition and the Constitution, 85 MICH. L. REV. 621, 639 (1987) (suggesting small states might have hesitated to ratify the Constitution in the absence of big state support).
25 can amended only through a two stage process of first repealing the prohibition and then passing a subsequent amendment,72 it is clearly harder to repeal than it was to pass. Nevertheless, this defect may have been necessary to obtain passage of the Constitution, given concerns about the protection of state sovereignty at the time. We analyze the significance of this defect in our discussion of the more general problem of the Constitution’s reliance on state rather than individual representation.
IV. The Continuing Desirability of an Old Supermajoritarian Constitution
While we have argued that a constitution enacted pursuant to supermajority rules is desirable, one might question whether that constitution will continue to be desirable over time. The supermajority rules might generate superior norms as compared to majority rule during the early years of a constitution, but why will they not decline over time as they become increasingly out of date, because they no longer reflect modern circumstances or the modern values of the people? In fact, it is often argued that an especially old constitution, like that of the United States, remains desirable only because the Supreme Court has updated it through a living constitution approach to interpretation.
In this section, we show that this common understanding is mistaken. First, we argue that a constitution enacted pursuant to a strict supermajority rule is likely to remain desirable over a long period. Next, we address the so-called “dead hand problem.” Finally, we show that following an old constitution, while imperfect, would be superior to pursuing a living constitution method of interpretation.
A. Constitutional Enactors Can Design a Constitution to Last for a Long Period
It is certainly true that legal norms – both constitutional and ordinary laws – can decay over time. Such norms might be desirable initially, but grow to be suboptimal or even detrimental. But a wise constitutional enactor, who desired a constitution to last for a long period, has various means available to ensure that the constitution and laws did not become out of date. If strict supermajortiarian procedures operate to promote desirable constitutional provisions, then one would expect that the constitutions enacted under such procedures, like the United States Constitution, would have used these various means. As Chief Justice Marshall stated, the Framers designed the Constitution to last indefinitely.73
There are three main ways that constitutional enactors can guard against constitutional decay, and the enactors of the United States Constitution employed all of them. First, the Constitution does not decide most of the legal issues for the nation. Instead, the Constitution allocates to the legislature and the executive at the federal and
72 Compare Akhil Amar, The Consent of the Governed: Constitutional Amendment Outside Article V, 94 COLUM. L. REV. 457, 461 (1994) (suggest that states’ equal suffrage can be amended in a two step process) with Stephen M. Griffin, The Nominee Is ... Article V, 12 CONST. COMMENT. 171, 173 (1995) (suggesting amendments absolutely bar states’ equal suffrage in the Senate). 73 See McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407-408(1819).
26 state levels the great majority of legal and policy decisions to be made.74 Thus, federal and state law can be transformed or updated as often as the representatives of the voters decide that it needs to be without significant constitutional constraint.
Second, those constitutional constraints that are imposed are designed to last for a long period. In particular, many constitutional provisions are entirely appropriate for long term matters, because they are not tied to specific circumstances but adopt what might be regarded as long term principles that can be applied to new circumstances.75 For example, the assignment to the federal government of the power to regulate interstate commerce will automatically expand (or contract) as circumstances change causing more (or less) matters to fall under the category of interstate commerce. Thus, the Commerce Clause will continue to identify a category of activities that is deemed especially appropriate for the federal government to regulate even though the specific activities covered by this category may change over time. Similarly, the Fourth Amendment prohibition on unreasonable searches establishes a principle that can be applied to future institutions and circumstances. The Framers specifically had the issue of anachronism in mind and generally avoided committing it.76
Finally, the Constitution also adopts a provision for constitutional amendments that allow undesirable or outdated provisions to be changed.77 With one important qualification, we showed that Article V largely achieves this goal.78
Overall, then, a well designed constitution should avoid becoming out of date. Its constitutional restraints would generally remain useful and most of the updating would be done by the legislature and the executive. When provisions did become out of date, one would expect that they would be amended. There might, of course, be other provisions which were undesirable but not so undesirable as to create sufficient support for a constitutional amendment. Those mildly undesirable provisions (perhaps the provision that requires Presidents to have been born in the United States is an example) might not be eliminated and therefore would be undesirable. But that would be the price that one pays for a constitutional system which uses a desirable procedure for enactment and amendment.
B. A Comparison with Judicial Updating
74 See Philip A. Hamburger, The Constitution’s Accommodation of Social Change, 88 MICH. L. REV. 239, 287 (1989) (showing that the Framers consciously chose this strategy). In addition to the legislature and the executive, common law courts, especially at the state level, can update or adjust the law to new circumstances. 75 See Richard A. Goldwin, Original Intent and the Constitution, 47 U. MD. L. REV. 189, 194 (1987). 76 Moreover, the passage to time may strengthen rather than weaken the rational for some provisions of the Constitution. The Framers did not understand competition among the states to be a benefit sustained by federalism, but in the modern world that has become a strong argument. 77 See Hamburger, supra note x, at 300 (discussing this aspect of the Framers’ strategy to address social change). 78 One also wants a system that prevents any entity from having a veto on the amendments. We discussed Article V’s imperfections in that regard, because Congress must effectively propose amendments, potentially giving it a stranglehold on the process. See notes xx and accompanying text.
27 We have shown why a supermajoritarian constitution would likely remain desirable over time. But we do not have to rest our case on this relatively abstract claim, because the ultimate question is a comparative one: whether following an originalist interpretation of that constitution would be superior to allowing judges to depart from that constitution to update it or to establish new constitutional norms. In this section, we examine how judicial updating by the Supreme Court compares to the supermajoritarian amendment process, show how judicial updating impedes the amendment process, and examine and reject the possibility of merely using a presumption of originalism.
1. The Process of Judicial Updating and Constitutional Amendment
There is a great deal of controversy about how the Supreme Court behaves when it engages in judicial updating. Our claims here are not intended to rely on an especially negative view of the Court. Rather, it is simply that the Court’s decisions, as reflected by relatively noncontroversial understanding, are inferior to an appropriate supermajoritarian process in creating constitutional norms.
One way to compare judicial updating with the constitutional amendment process is to do so by examining the basics of the processes. The design of the constitutional amendment process produces some significant benefits in terms of enacting constitutional norms. The process ensures that the norms reflect a consensus, since they require a strict supermajority of support from a widely dispersed range of legislatures throughout the nation. By contrast, the Supreme Court decisions need not reflect a consensus and indeed are often polarizing.79 The decisions are made by a small number --9 judges.80 Justices are also relatively homogenous, being drawn from the class of elite lawyers, live in Washington, DC, and serve with life tenure.81 Moreover, their decisions are rendered by a mere majority vote.
The constitutional amendment process is also likely to lead to high quality amendments. As we have shown, the supermajority requirement reduces the partisanship involved by requiring bipartisan compromise, and it also leads to constitutional enactments through a veil of ignorance. The process of judicial updating does not share these features. While the justices are politically independent, they still have strong political ideologies that are clearly reflected in their judicial decisions. The “us versus them” mentality is clearly alive and well at the Supreme Court.82
79 See NATHANIEL PERSILY ET AL. , PUBLIC OPINION AND CONSTITUTIONAL CONTROVERSY (forthcoming 2008) (discussing poliraizing nature of some Supreme Court decisions). 80 See John O. McGinnis, Reviving Tocqueville’s America: The Rehnquist Court’s Jurisprudence of Social Discovery, 90 CALIF. L. REV. 485, 566 (2002). On Condorcet grounds, small numbers are less likely to reach accurate results. See Adrian Vermeule, Common Law Constitutionalism and the Limits of Reason, 107 COLUM. L. REV. 1482, 1493 (2007). 81 See John O. McGinnis, Justice without Justices, 16 CONST. COMMENT. 541, 542-43 (1999) (discussing factors that make Supreme Court Justices insular). See Vermeule, supra note, x at 1499-1500 (making similar point about common law constitutionalism). 82 See William Landes and Richard Posner, Judicial Behavior: A Statistical Study 15-16 (unpublished manuscript) (noting that justices have recently become more polarized and susceptible to block ideological voting).
28
Moreover, the justices do not, to a significant extent, make decisions behind a veil of ignorance. While a constitutional amendment cannot easily be changed and therefore must be lived with under different circumstances, judicial decisions are open to ready revision. A judicial decision today can be overturned in the future, either by judges who disagreed with it when it was decided, or by judges who agreed with it when it was decided but subsequently did not like its effects. Even more significantly, a judicial decision can be distinguished, so that a decision based on a principle that benefits a group at one time need not be applied to impose costs on that group at a later time. For example, while conservative judges had rejected a right to privacy based on penumbras, they used analogous interpretive methods to ground state sovereign immunity.83 Similarly, liberal judges had overturned Lochner based on opposition to unenumerated rights, but they embraced such rights to establish the right to abortion in Roe v. Wade.84
The dynamic nature of constitutional law under a living Constitution approach has other significant costs. The character of constitutional law becomes transformed under this approach. First, the Constitution no longer has a fixed meaning that can be relied upon. Instead, the Court can come up with the new meanings that would have been opposed by people in any constitutional deliberative process. Thus, the security of the Constitution, and its constraint on government, is greatly reduced. Second, the dynamic nature of constitutional law means that it creates significant uncertainty, with people and government officials not knowing what its provision will mean in the future. This uncertainty undermines the rule of law.85
Third, constitutional law will now be more open to obfuscation and dishonesty. If justices were willing to admit openly what they were doing – employing norms that were not originally contained in the Constitution — then dishonesty would not be required. But justices rarely admit that they are establishing new norms and therefore their
83 Compare Griswold v. Connecticut, 381 U.S. 479 (1965) with Seminole Tribe v. Florida, 517 U.S. 44 (1996). 84 Compare Lochner v. New York, 198 U.S. 45 (1905) with Roe v. Wade, 410 U.S. 113 (1982). 85 Some scholars have suggested that a virtue of an informal amendment process or what we call judicial updating is the fluidity it permits. Thus, Professor Reva Siegel argues that “a system that permanently resolves the Constitution’s meaning risks permanently estranging groups in ways that a system enabling the perpetual quest to shape constitutional meaning does not.” See Reva B. Siegel, Constitutional Culture Change: The Case of the De Facto ERA, 94 CAL. L. REV. 1323, 1328 (2006). We have shown why just the opposite is the case. It is the formal constitution making process that that brings the consensus that will establish affection for the Constitution. Even apart from this, the difficulty with the claims like that of Professor Siegel from a normative perspective is that they fail to show how such an informal process is likely to lead to high quality constitutional provisions. In our view, the question of the quality of the entrenchment process is the central, even if much neglected, question in constitutional law. . 85 During this period, various mechanisms will allow people who seek to change the constitution to make their preferences known. For all issues that states can address, such as the provision of rights that are not contained in the Constitution, citizens are free to change their state statutes and constitutions, showing that their desired policy is good. See John O. McGinnis & Nelson Lund, Lawrence v. Texas and Judicial Hubris, 102 MICH. L. REV. 1555, 1600 (2004). Through jurisdictional competition this process may also put pressure on other states to change their policies. Id. For policies over which states have no power, like the scope of federal government authority, citizens can petition their members of Congress to introduce and pass a constitutional amendment.
29 opinions cannot be candid.86 This dishonesty significantly impairs the ability of the justices to debate the issues and thereby produces lower quality judicial decisions.87
Of course, this analysis should not suggest that the justices can reach any decision that they like. In updating justices are limited by a variety of forces. First, the justices are circumscribed by their limited political capital. If the court takes actions that provoke strong negative reactions from the Congress, the President, or the people, then they will be subject to attack. If they take enough unpopular actions – if they deplete their political capital – then they become subject to reprisals. As a result, for instance, they have acted to protect the rights of minorities only if these minorities have significant support.88 In the absence of such support, their reputations will be harmed, and the political branches can begin to take actions that cut back on the Court’s power. The political branches will also fill vacancies with justices who disagree with the Court’s position.
While the justices therefore cannot do anything they want, they can still exercise substantial power without exhausting their political capital. Thus, even the need to maintain some level of support still allows the Court to take actions that are strongly opposed by significant portions of the nation.89 Accordingly, from this realist perspective, their decisions do not have to reflect majority popular opinion at a given moment, let alone the more deliberative consensus crystallized by the constitutional amendment process. 90
86 See Heather Gerken, A Skeptical Response to Our Democratic Constitution, 55 DRAKE L. REV. 925, 939 (2007) (acknowledging lack of candor in judicial updating). 87 Recently scholars have argued that judicial updating is part of a larger social process in which political actors other than the judiciary help advance the ideas that are ultimately used to update the Constitution. See Gerken, supra note x, at 935. While this is undoubtedly true as a factual matter, it does not change our normative critique. The judiciary must still choose from the many ideas advanced to them, because, unlike the amendment process, the addition of other political actors does not provide a mechanism to distinguish ideas that have become law and those that have not. See also John O. McGinnis & Michael B. Rappaport, Our Supermajoritiarian Constitution, 80 TEX. L. REV. 703, 795 (2002) (making similar critique of Ackerman). 88 Michael J. Klarman, Rethinking The Civil Rights and Civil Liberties Revolution, 82 VA. L. REV. 1, 16 (1996). 89 See id, supra (arguing that the Supreme Court does not take positions which have no public support, but can take positions which are supported by only 40 percent of the nation). 90 That the Court is an institution constrained by other institutions should not be confused with the claim that it follows popular will in the manner of a legislature. First the legislature is structured to reflect popular opinion and the judiciary is insulated from it. See JESSE CHOPER, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS: A FUNCTIONAL RECONSIDERATION OF THE ROLE OF THE SUPREME COURT 3-70 (showing how the institutional structure makes legislature more responsive to voters than the judiciary). Second, consistent with this analysis, political scientists have shown that while the judiciary does respond to the public mood it does so incrementally at the margin. See Frank B. Cross, 64 OHIO L. REV. 195, 212(2003); Roy B. Flemming & B. Dan Wood, The Public and the Supreme Court: Individual Justice Responstiveness to American Policy Moods, 41 AM. J. POL. SCI. 468, 496 (2003) Finally, there are whole areas of the law in which the judiciary systematically is out of step with the public. For instance, the Supreme Court protects individual rights as a general matter more than the public wants. See Joseph Ignani, The Supreme Court and Public Support for Rights Claims, 78 JUDICATURE 146 (1994). Dramatically, even a Supreme Court made up of Republicans appointees shows little support for prayer in public schools, although huge majorities support the policy. Michael Comiskey, The Rehnquist Court and American Values, 77 JUDICATURE 261 (1993). Nor does the Court predict the shape of constitutional
30
2. Judicial Updating Undermines the Constitutional Amendment Process
The problems with judicial updating are not limited to the relatively low quality of judicial updating compared to supermajoritarian constitution making. The problem is also that judicial updating actually undermines the constitutional amendment process. This adverse consequence shows that to a significant degree, one cannot employ both judicial updating and constitutional amendments. One must choose between the two of them.
The inconsistency of judicial updating with the constitutional amendment process is not generally appreciated. Yet, the explanation is clear and direct. The strict supermajoritarian rules in the constitutional amendment process require a strong consensus for an amendment to pass. That requirement means that existing constitutional provisions can be defective albeit usually to a limited degree, without the nation being willing to enact a constitutional amendment reforming it. It will only be situations where a provision is strongly defective – and therefore large numbers of citizens recognize that it needs to be changed – that a provision will be able to secure a constitutional amendment.
The nation will ordinarily have to incur a number of years where a majority of the people believes that a provision is undesirable before sufficient support can be secured to pass a constitutional amendment. During this period, people will bemoan the constitution and the constitutional amendment process which prevents the amendment from being enacted. 91
Now consider how judicial updating works. If the Supreme Court believes that it may update the Constitution to solve defects that emerge, it will likely take action to correct the defect discussed above. Indeed, the Supreme Court may feel itself perfectly justified in correcting the defect on the ground that a significant percentage of the nation supports it, but the unduly strict constitutional amendment process prevents it from occurring.
Once the Supreme Courts takes action, however, the opportunity for the amendment process to work will dissipate. Even if the amendment process would have reached a different result after full deliberation, it is not likely to be employed after the opinion in the future. See NATHANIEL PERSILY ET AL. supra note x (showing that public opinion does not consistently move toward court decisions). 91 During this period, various mechanisms will allow people who seek to change the constitution to make their preferences known. For all issues that states can address, such as the provision of rights that are not contained in the Constitution, citizens are free to change their state statutes and constitutions, showing that their desired policy is good. See John O. McGinnis & Nelson Lund, Lawrence v. Texas and Judicial Hubris, 102 MICH. L. REV. 1555, 1600 (2004). Through jurisdictional competition this process may also put pressure on other states to change their policies. Id. For policies over which states have no power, like the scope of federal government authority, citizens can petition their members of Congress to introduce and pass a constitutional amendment.
31 Supreme Court decision. The decision would be unlikely to be so far from the result that a popular amendment would have achieved that a supermajority could subsequently be mustered for an amendment.
But the fact that the Supreme Court rather than the constitutional amendment process will have updated the provision is itself a cause of harm. The Supreme Court’s updating decision may differ from the results of the constitutional amendment process in four different ways. First, the constitutional amendment that was passed would have reflected compromise between a large portion of the public.92 By contrast, the Supreme Court decision would be less likely to do so, instead reflecting the views of a majority of the Court, who will often act out of their view of political principle. Second, the constitutional amendment result would also have been part of a process designed to take account of quasi-permanent nature of the enactment. Thus, the supermajority rule would have reduced partisanship in the decision. Moreover, the long term nature of the decision would have meant it was enacted behind a limited veil of ignorance. By contrast, the Supreme Court decision would not have been made as part of this process, and the Supreme Court’s knowledge that it can overturn or distinguish precedents would have led the Court to be far less careful in making these decisions.
Third, the constitutional amendment process might not have led to an amendment. That is, while there was strong majority support for an amendment, it did not at that time translate into the requisite supermajoritarian support. If one believes that the constitutional amendment process is likely to produce high quality decisions in entrenchment, then this indicates that the provision should not have been enacted.
Fourth, the constitutional amendment process might have actually led to the same result as the amendment. But even in that situation, judicial updating would not have replicated the constitutional amendment process. The nation would not know that the judicial decision would actually have produced the same result as the constitutional amendment process and therefore it would be less accepted than if there were a constitutional amendment. In contrast, a constitutional amendment would provide a more secure right than a judicial decision, which can more easily be overturned.
These differences can be illustrated with a couple of examples. First, consider the New Deal Court’s decision to expand the Commerce Clause so that it did not have any real limitations. Given public opinion at the time and the strong support for the Roosevelt Administration, it seems quite likely that the nation would have supported an expansion of the Commerce Clause.93 Yet, it is also quite likely that the nation would not
92 See infra notes xx and accompanying text. 93 See DAVID E. KYVIG, EXPLICIT & AUTHENTIC ACTS: AMENDING THE U.S. CONSTITUTION, 1776-1995, at 305, 314 (1994) (arguing that Roosevelt could have passed constitutional amendments expanding federal power). Relying on Franklin Roosevelt’s assertions, Bruce Ackerman to the contrary asserts that the Roosevelt administration could not have passed constitutional amendments authorizing the New Deal programs. See BRUCE ACKERMAN: WE THE PEOPLE: TRANSFORMATIONS 312-344 (1998). We find Professor Kyvig’s views more plausible. After 1936 only seven states had legislatures that were in the hands of the Republicans. See Rafael Gely & Pablo Spiller, The Political Economy of Supreme Court Constitutional Decisions: The Case of Roosevelt's Court Packing Plan, 12 INT'L REV. L. & ECON. 45, 63
32 have agreed to give the Congress unlimited power and eliminated federal limitations. As a result, Congress might have had expanded power to regulate economically without giving it plenary power.
Depending on the constitutional amendments passed during the New Deal, it is also quite possible that an amendment would have been passed in the 1970s to address environmental matters. The “environmental decade” of the 1970s revealed strong, bipartisan support for federal action to address pollution.94 Once again, a constitutional amendment might have been enacted that would allow it to address environmental problems, but this amendment might have conferred more limited authority, such as that which would have enabled Congress to address interstate pollution.
Judicial updating, however, does not merely displace specific constitutional amendments. It changes the constitutional amendment process in ways that make future constitutional amendments less likely. Once the Supreme Court begins to displace constitutional amendments, this behavior provides the public with an additional incentive to avoid the time consuming process of amending the Constitution. Political groups will be less inclined to spend the effort necessary to mobilize support for a constitutional amendment if the Supreme Court is likely to take action during the process. Rather, they will change their focus and spend time on Supreme Court nominations and attempt to influence that process. Moreover, as time passes and fewer constitutional amendments are passed, it becomes even less likely that they will be used, as people become unaccustomed to their use.
Finally, judicial updating also interferes with the constitutional amendment process in another way. One is less likely to use the constitutional amendment process if the Supreme Court cannot be trusted to interpret one’s amendment in a faithful way. This is especially the case in a constitution, because so many provisions tend to be general ones. Since it is now claimed that general provisions are intended to allow updating or judicial creativity, such provisions are unlikely to be used by those who intend to adopt a principle.
We can see the harmful effect of judicial updating on the enactment of constitutional amendments with respect to the failed attempt to enact the Equal Rights Amendment during the 1970s. That amendment secured the vote of 35 of the 38 states it required for ratification, but failed.95 At least two factors contributed to its failure. First, the Supreme Court decided cases granting women heightened scrutiny under the Equal
(Table 5) (1992)). In any event, we believe that Ackerman focuses on the wrong issue in considering whether Roosevelt could have succeeded in achieving his own maximalist demands in the amendment process rather than more incremental constitutional change. The amendment process does require compromise to achieve consensus and we have described why this is desirable. 94 See JANE MCCARTHY & ALICE SHORETT, NEGOTIATING SETTLEMENTS: A GUIDE TO ENVIRONMENTAL MEDIATION xi (1984)(“The 1970s, tagged the Decade of the Environment created unprecedented awareness of the need to protect and preserve our natural resources"). 95 See JOHN R. VILE. ENCYCLOPEDIA OF CONSTITUTIONAL AMENDMENTS, PROPOSED AMENDMENTS, AND AMENDING ISSUES, 1789-2002, 177-180 (2nd ed 2003).
33 Protection Clause, thereby reducing the need for the Equal Rights Amendment. 96 Second, the Supreme Court had shown a willingness to depart from the original meaning of provisions, and there was a fear that the Amendment would be interpreted broadly to require unpopular measures, despite what its advocates claimed it encompassed..97 Had the justices not already updated the Constitution and had it been clear that the amendment would not be creatively interpreted, there seems little doubt that the amendment would have been ratified.
In contrast, a Supreme Court that follows originalism will promote constitutional amendments. During the period when the defect is emerging, an originalist Court will decide cases under the original meaning and will make clear that it will not correct the alleged defect. This will give political groups the incentive to attempt to organize for a constitutional amendment. Moreover, the Court might even state that the way to correct this defect is through a constitutional amendment, which might help to promote such organizing.
Interestingly, it is often argued that the Constitution’s amendment provisions are too strict and therefore judicial updating is required.98 Our examination of judicial updating suggests, however, that this argument is mistaken and actually has the matter reversed. It is not that the constitutional amendment process does not operate well and therefore non-originalism is required. Rather, it is that nonoriginalism prevents the constitutional amendment process from operating fully.99
C. A Presumption of Originalism
It might be argued that the general superiority of the supermajoritarian process for
96 Reed v. Reed, 404 U.S. 71 (1971), struck down discriminatory laws and effectively applied intermediate scrutiny before the Equal Rights Amendment was passed. A plurality of the Court applied strict scrutiny in striking down another law that discriminated against women on the basis of gender. See Frontiero v. Richardson, 411 U.S. 677, 688 (1973) (Brennan, J.) while the amendment was pending. Justice Powell concurred in that case arguing that the Court should not apply strict scrutiny to allow the amendment a chance to settle the issue. Id. at 692. 97 See Suzanne Sangree, Title IX and the Contact Sports Exemption: Gender Stereotypes in a Civil Rights Statute, 32 CONN. L. REV. 381, 412 (2000). 98 See Stephen M. Griffin, The Nominee Is... Article V, 12 CONST. COMMENT. 171, 172 (1995) (suggesting that the effect of the stringent amendment process is "to force[] a significant amount of constitutional change off the books and thus [to] limit[] the ability of the Constitution to structure political outcomes"). 99 It might be argued that our call for a return to originalism ignores the incentives judges have to take advantage of the supermajoritarian amendment process to maximize their own policy preferences within the large policy space in which they cannot be overruled by a constitutional amendment. We believe, however, that there is not a complete mismatch between the mechanism of originalism and judicial incentives. Judges have been originalists in the past, see infra notes xx and accompanying text, and they could be largely originalists in the future. Judges have other motivations than merely implementing policy preferences. As Richard Posner has noted, justices have among other goals, an interest in playing legal games because of the pleasure they get from the interplay of rules. See Richard Posner, What do Judges Maximize? (The Same Thing Everybody Else Does), 3 SUP. CT. ECON. REV. 1 (1999). If originalism becomes a plausible alternative in our legal culture, judges may turn to it as their principal game. By showing the essential coherence and purpose of originalism, this article seeks to restore a culture of originalism and encourage more judges to play.
34 enacting constitutional provisions can produce only a presumption in favor of originalism. Under a presumption, judges would evaluate a provision before applying it.100 If they determined it was seriously defective or out of date, they would update it. Otherwise, they would apply the provision. Before assessing this presumption in detail it should be noted that it is superior to a more general strategy of judicial updating. In a significant number of cases, judges will be led to follow the original meaning, even though they might believe that the constitution would be better if the provision had a different content. Thus, the supermajoritarian theory of the Constitution will have made a substantial contribution even if it were only to provide a strong foundation for a presumption of originalism. Still, we believe that the presumptive approach would be inferior to a genuine originalism.
The only difference between presumptive and genuine originalism occurs when judges find provisions seriously problematic. And therefore the the advocate of the presumptive approach might argue that it is superior because the quality of the constitutional provisions updated will be very poor and thus the judicial updating superior despite its defects in the ordinary case. This is an important argument and certainly one that is stronger than the ordinary argument for updating. Yet it has the same problems that afflict judicial updating would continue to afflict presumptive originalism.
Under presumptive originalism, there would still be no fixed meaning to the Constitution. Moreover, there would be significant disagreement about the application of the presumption. Thus, liberal justices might regard a provision as so defective as to defeat the presumption, but conservative justices might deem it as desirable or at least not undesirable. In that situation, disagreements would turn on politics and different views. Thus, the Supreme Court would operate as the policy decisionmaker. 101
Of course, if the policy preferences of judges were employed, it would be difficult for the judges to engage in dialogue about these matters.102 The justices could not admit what they were doing and this would significantly reduce the effectiveness of any debate in their opinions.
Perhaps the biggest problem under a presumptive originalism applied faithfully is that it continues to undermine the constitutional amendment process. When the Court chooses to intervene, even if it is limited to cases where it concludes it is strongly problematic, it will still operate to prevent the constitutional amendment process from operating. Indeed, if a presumption captures the provisions that are most defective, it is likely to interfere with the constitutional amendments most likely to be passed. But even
100 For discussion of a presumption of originalism, see Richard H. Fallon, Jr. “The Rule of Law” as a Concept in Legal Discourse, 97 COLUM.. L. REV.1, 48 (1997). 101 A presumption might operate much better if it only applied in cases where a supermajority of the court actually believed that the provision was undesirable. If a large percentage of justices believed the provision was defective, then one could actually conclude that there was a good reason to believe it was out of date. Of course, in that situation, one would wonder whether a constitutional amendment would pass. 102 See Gerken, supra note x, at 939.
35 operating with the presumption the Court may sometimes choose to update in situations where a constitutional amendment would not be enacted. 103
In the end, the question ultimately is again what provides the superior method for generating constitutional norms: the constitutional amendment process or the judicial updating process. While the constitutional amendment process certainly has defects, it appears to be superior to judicial updating process, even when the latter is limited to clear defects. And since the two processes cannot be easily combined in the same areas of constitutional law, one must choose between them. A presumption in favor of originalism chooses updating over the amendment process.
D. The Dead Hand Problem
Another way to address the continuing desirability of an old Constitution is to focus on what has been called “the dead hand problem.” 104 The dead hand is a reference to the question why, under a Constitution, the present day majority is prevented from taking action that displaces the decisions of people who are long dead.105 What justifies being ruled by the dead hand of the past? The supermajoritarian theory of constitutionalism has a strong and original argument to make.
To begin with, the dead hand argument in its strongest form seems inconsistent with all constitutionalism that prevents an existing majority from taking action it desires. Accordingly, the more relevant standard, one that is consistent with constitutionalism, is to ask whether a constitution privileges one generation over another. For instance, if our Constitution allowed the Framers a better opportunity to place provisions in the Constitution than it does current generations, then it would privilege their generation. But a constitution that satisfies the formal requirement of symmetric entrenchment allows each generation to enact provisions into the constitution under a similar set of supermajority rules. As described above, our Constitution largely tracks this criterion..
Perhaps more importantly, our supermajoritarian theory of constitutionalism provides further consequentialist responses to the dead hand argument. First, an appropriately supermajoritarian constitution will likely generate desirable restrictions such as the separation of powers, federalism, checks and balances, as well as the protection of individual rights. Thus, a supermajoritarian constitution, like ours, that limits the current majority is not merely necessary to constitutionalism, it also can be very beneficial to current majorities if enacted under appropriate supermajority rules. Under these conditions the hand of the past is one that reaches out to steady the living.106
103 Of course, if judges do not apply the presumption faithfully, which seems a real possibility, the presumption may even lead even worse results. They will apply the presumption to provisions with which they ideologically agree and not to provisions with which they disagree. The results will be similar to cases where there is no presumption, except there may be more obfuscation and deceit. 104 See Michael W. McConnell, Textualism and the Dead Hand of the Past, 66 GEO. WASH. L. REV. 1128, 1128-29 (1998). 105 Id. 106 Thus, our argument provides a functional answer to the argument that the passage of time undermines the case for applying originalism, see Dorf supra, note x, at 1819-1820. A supemajoritarian process
36
Second, the similar opportunity afforded each generation to entrench provisions under a symmetrically supermajoritarian constitution also has consequential as well as merely formal virtues. It helps to ensure that the values of the Constitution can be updated by each generation without the other benefits generated with supermajority rules being compromised.
Of course, it might be argued that the enactors’ generation still had a disproportionate influence on the Constitution, since so many of its provisions were enacted by them. Or to make a similar point, had the Constitution been enacted by the modern generation, it would probably look somewhat different than it does now. The Framers’ generation had a first mover advantage.
But the fact that the enactors have more actual input into the Constitution (as opposed to formal input) does not mean that the existing generation is necessarily disadvantaged. Once it is recognized that different generations affect one another – and, of course, the relationship between generations cannot be changed – it is not surprising that different generations may have different advantages and disadvantages. While the Framers may have had more input into the Constitution, we have other advantages. We inherit the benefits of their system-- a Constitution that is stable, desirable with strong commitments from the nation.
To sum up, the enactors had an advantage in terms of placing their values into the Constitution, but we have the advantage of enjoying the benefits of their work. We could always put ourselves in the enactors’ situation by junking the Constitution, but we don’t. That shows we are better off with our end of the deal.
V. Supermajoritarian Failure
In the previous sections, we have developed our theory that constitutions that are enacted pursuant to strict supermajority rules are likely to be desirable. And we have shown that the United States Constitution formally conforms to this theory to a remarkable extent. Yet, we have also recognized that the Constitution has in several important ways departed from the requirements of the supermajoritarian theory, particularly in its exclusion of some from the constitution-making process.
In this section, we explore the consequences of that failure to conform to the requirements. If the Constitution has certain departures – if there is what we call supermajoritarian failure – then what are the consequences for the normative theory of the Constitution?
This section argues that there are only three basic alternatives in response to supermajoritarian failure. First, one can dispense with the existing constitution and attempt to establish a new one. Second, one can simply apply the original meaning of the designed for entrenchment compensates for the passage of time and it is better to enforce the results of the past supermajoritarian process that those of current majorities in the legislatures or on the Supreme Court.
37 imperfect constitution, even though it has defects. Third, one can purport to apply the imperfect constitution, but then depart from that constitution in an effort to correct it.
Here we compare these three alternatives. We show that dispensing with our existing Constitution is an extremely problematic alternative which is not justified for the United States because the Constitution has far less costly defects than the costs of this alternative. We then argue that judicial correction of these failures is generally an inferior response to them because it shares many of the defects of judicial updating. Nonetheless, one cannot reject such judicial correction categorically, because there may be circumstances where it is superior. The defects in the supermajoritarian process may be so substantial and reduce the beneficence of the supermajoritarian so much that judicial correction becomes a more attractive option. In the subsequent section, we explore the most important supermajoritarian defects of the Constitution relating to blacks, women, states, and constitutional amendments, and conclude that they do not currently justify either junking the Constitution or judicial correction.
A. Replacing the Existing Constitution
Given constitutional failure, the first alternative is simply to dispense with the Constitution and to replace with it a new Constitution that avoids the defect. In a way, this approach would seem to be the most obvious, and the cleanest, response to the defect. If the constitutional enactment process did not allow African Americans and women to participate, then one should simply junk that constitution and draft a new one through a process that does allow African Americans and women to participate.
But there are powerful reasons why dispensing with the Constitution would not be desirable. First, enacting a new constitution would involve a great deal of effort. The nation would have to concentrate tremendously on the issue, and it would displace enormous resources for a number of years. Second, during that period of constitutional transformation, citizens would be uncertain of what our fundamental law would turn out to be and that uncertainty would have potentially huge costs, as individuals and businesses put off decisions until they once again had a firm system of government. Third, the new constitution, even if its provisions were superior, would not have the same overall benefits of the old one due to the allegiance that it enjoys. A new constitution would not necessarily secure the unity and patriotism that the old one does. Finally, we cannot be certain that the new constitution would be better. Even though the existing constitution is imperfect, the new one could turn out worse. There is certainly enough variability in the supermajoritarian process that even a perfect process could produce a worse result than an imperfect process did, particularly if the worst defects of that first process have been corrected over the years.
One other kind of uncertainty undermines the option of getting rid of a constitution: how does one actually dispense with it? For the United States Constitution, this can be a quite difficult question. The least complicated way to dispense with the Constitution is to use the existing Article V mechanism to call a constitutional convention and then have that convention propose a new constitution. But in junking the whole
38 constitution people may call for an entire new system of ratification107 and disregard Article V, just as those who junked the Articles of Confederation dispensed with its unanimity requirement.108 The uncertainty about the method of constitution making would be yet another cost of replacing the old constitution with an entirely new one. Moreover, one could not be confident that the method selected would be as good a one.
In the end, replacing the existing constitution with a new one is an alternative that will make sense only when the constitution is not terribly popular and when the existing population supports such different principles of government that amendments to the existing principles are not practical. And these benefits must be large enough to outweigh the uncertainty costs of creating a new constitution. In the case of the United States, these circumstances simply do not hold. Not surprisingly, only a very few scholars have ever suggested that this is a viable option. 109
B. Judicial Correction
The other alternative to following the original meaning of an imperfectly enacted constitution is to have the judiciary attempt to correct the imperfection under the guise of interpretation. Under this judicial correction approach, the judiciary would not be allowed to generally update a constitution, but instead would be allowed to correct only problems that resulted from a defect in the supermajoritarian process for enacting or amending the constitution. Here, we argue more generally that the judicial correction approach suffers from many of the same problems that plague that of judicial updating. Thus, we believe there are strong arguments against this approach. We acknowledge, however, that the case for judicial correction is considerably stronger than the case for judicial updating. It is even possible that such corrections might have been justified previously, although we do not believe they are justified at present.
We identify four basic problems with the supermajoritarian process for enacting the United States Constitution: the exclusion of blacks and women from the constitutional enactment process, the equal weighting of states with differing populations in the constitutional enactment and amendment process, and the strictness of constitutional amendments in a world where judges depart from the original meaning. The judicial correction approach would potentially allow judges to correct these problems or to reduce their effects. In the next section we outline the case against any current judicial correction of each of the four process defects in our own constitution.
107 Akhil Amar for instance, believes that the Constitution could be amended and presumably wholly transformed outside of Article V by national referendum. See Akhil Reed Amar, Philadelphia Revisited: Amending the Constitution Outside Article V, 55 U. CHI. L. REV. 1043 (1988) Others have critiqued the historical support for that view, See, e,g., See, e.g., Henry Paul Monaghan, We the People[s], Original Understanding, and Constitutional Amendment, 96 COLUM. L. REV. 121 (1998) We believe in addition that such a national referendum lacks the supermajoritarian features that make for beneficial constitutionalism. 108 See supra notes xx and accompanying text. 109 For a defense of the process by one who has, see SANFORD LEVINSON, OUR UNDEMOCRATIC CONSTITUTION (2006).
39 The problems with judicial correction are similar to those afflicting judicial updating. To begin with, there is unlikely to be agreement about the need for judicial correction or the content of that judicial correction. After all, wide agreement on these matters would likely prompt a constitutional amendment.
These disagreements could occur on several issues. There can be disagreements about whether the supermajoritarian process was defective or not. Some, for example, might regard representation through states rather individuals as being a permissible form of a constitution making process. Disagreements would also arise about what would have occurred if the process had not been defective. For example, some might argue that had women been included in the enactment process, affirmative action requirements might have been enacted. Others would disagree. Finally, there may be disagreement about how to correct for defects in the supermajoritarian process.
These disagreements can have significant effects. First, if some judges seek to correct defects in a way that is viewed as impermissible by other judges, then this disagreement will have problematic effects. One set of judges may regard such actions as judicial activism and a refusal to follow the Constitution. As a result, they will regard those decisions as fundamentally illegitimate. Other judges may fight fire with fire and use the judicial correction process as a cover for advancing their own policy views. Either result may lead to spiral of dissension and politicization within the Court itself as well as among citizens watching a process with no consensus.
These problems will be exacerbated by the fact that they will not be discussed in the open.110 If judicial debate on such questions were permitted – if one group could engage the other on the need to correct the Constitution and the circumstances when this was permitted – that might both improve the decisions and lead to some agreement on the questions.111 But without this open debate, the decisions are likely to be worse and the acceptance of their correctness and legitimacy to be less. In fact, without open discussion, it is not even clear that anyone will be able to make clear that judicial decisions are animated by an attempt to correct the Constitution.
The disagreements concerning the judicial corrections, like those concern judicial updating, will also lead to uncertainty. Since there will not be agreement about what judicial corrections should occur, this potential disagreement will create uncertainty about how the courts will decide cases that might be viewed as touching on issues involving judicial defects.
Finally, this judicial correction approach will also undermine the constitutional amendment process. If the judiciary routinely attempts to correct the constitutional defects, this effort will obstruct the political process in doing so. While it might seem that these changes could not be corrected by the constitutional amendment process, since the beneficiaries would refuse to agree, that is simply not correct. The clearest example
110 See Gerken, supra note x at 939. 111 Permitting judicial debate on such questions would also have costs, as the judiciary would appear to the public to be engaging in policy rather than legal debate, thus undermining the judiciary’s legitimacy.
40 of a correction involves the passage of the 19th Amendment guaranteeing women the right to vote. By contrast, there is a good case to be made that the equal rights amendment was defeated at least in part because the Supreme Court had “corrected” the constitution on its own during the same period. Of course, not all defects will be correctable by constitutional amendment. But the fact that judicial corrections interfere with this process must be regarded as another cost of using such corrections.
While the judicial correction approach therefore has significant problems, we cannot categorically reject it as we do the judicial updating approach. There are two strong reasons that make it much more likely that a judicial correction approach might, under certain circumstances, be justifiable. First, if there had been a supermajoritarian failure, then this makes it more likely that the constitution that is enacted has some serious substantive failures. While a constitution enacted under a desirable supermajoritarian process that is designed to last for long periods is unlikely to develop serious infirmities, it is more likely that a constitution that employed a defective supermajoritarian process would be seriously undesirable and would require correction through any means available.
Second, if there was a supermajoritarian failure, then this would provide a greater focus on the defect and the way to correct it. We have emphasized that there may be significant disagreement about the supermajoritarian failure. Nonetheless, there is still likely to be more agreement about this than there would be about what provisions happen to be out of date or undesirable. Although judicial correction might therefore turn out to be the best option in theory, we do not believe that that is the case at present.
VI. Process Defects and the Theory of Constitutional Failure
In this section, we address the consequences of process defects in the Constitution’s supermajority rules—their failure to be based on a one-person one-vote representation of the electorate. In particular, the original Constitution excluded African Americans and women from the franchise.112 Even today the ratification of the constitution takes place through the approval of states, and thus individuals wield different amounts of influence depending on where they live. Finally, we address a different kind of process defect that we have uncovered—the fact that the amendment process may be too strict given judicial updating. We apply our theory of constitutional failure to show that despite these defects, judicial correction of the Constitution would be currently worse than enforcing the amended Constitution, according to its original terms.
A. Exclusion of African Americans
112 One other potential defect is that there were still some property restrictions on the franchise in the original constitution making process, thus excluding some poor individuals. But Akhil Amar has recently shown that states substantially widened their franchises to include most free males, see Amar, supra, note x at 7, and thus we think this is a less significant defect than those we discuss. We would respond to it as we have responded to the others by suggesting that judicial action to correct it would have more costs than benefits.
41
The exclusion of the vast majority of African Americans from substantial participation in the drafting or ratification of the Constitution represents the most serious departure from the conditions of the desirable Constitution.113 The exclusion goes to the heart of how supermajority rules make for a beneficent Constitution. The constitutional process depends for its beneficence on representative voting and is impaired if some class of people are excluded from the constitution making franchise. Supermajority rules have the virtue of creating consensus solutions, but if we leave out voters from the process, their absence can cast doubt on the existence or the content of consensus. The supermajoritarian process is supposed to help protect minorities. But it will have difficulty in doing so if those minorities are prevented from participating. Thus the original sin of America—slavery—and consequent exclusion are also the greatest challenges to beneficence of its supermajoritarian process for creating its Constitution. 114
The consequences of this exclusion in the nineteenth century for the constitutionalism were quite severe. The Constitution did not guarantee African Americans political or civil rights nor did it dismantle the system of slavery. Given their exclusion from the enactment process and harsh treatment under the laws passed under its authority, our argument for the binding nature of the Constitution probably did not even apply to them. Their exclusion also raises a real question about the appropriate way to have interpreted the Constitution in the antebellum period, particularly the provisions of the Constitution that touched on slavery or that failed to eliminate it. 115
But the question of whether judges should correct the Constitution differs today because supermajoritarian failure has been followed by substantial supermajoritarian correction in the form of constitutional amendments.116 The Thirteenth Amendment
113 African American freedmen, however, were eligible to vote under the same rules as whites in five states at the time of the ratification-- New Hampshire, New York, New Jersey, North Carolina and New Jersey. See Dred Scott v. Sanford, 60 U.S. 398, 372-372 (1856) (Curtis, J., dissenting). We know that African Americans generally voted for the Federalist Party in the antebellum period and often had a high opinion of George Washington and Alexander Hamilton. See LEON LITWACK, NORTH OF SLAVERY, FREE BLACKS IN THE NORTH, 1790-1860 at 80-81 (1961). Therefore it seems likely that most of the few African Americans who did participate in voting for delegates to convention supported ratification. 114 Justice Marshall famously called attention to the central problem for American constitutional law. See Thurgood Marshall, Reflections on the Bicentennial of the United States Constitution, 101 HARV. L. REV. 1, 2 (1987). 115 Nevertheless, even here it is not clear what alternative was better than adhering to the Constitution. Junking the constitution over the slavery issue would likely have led to a retreat to sectional governments. The southern governments may well have treated African American even worse. Perhaps importantly, the failure of the Constitution would have retarded the progress of a liberal social order based on markets that made slavery ideologically anomalous. Trying to change the Constitution on these essential matters through non-originalist interpretations in the early Republic would likely have had a similar result. The different regions would likely have promptly spiraled into disunion. 116 One response to the view that supermajoritarian correction took place is that the Thirteen and Fourteenth Amendments were illegal. Bruce Ackerman, for instance, argues that Congress wrongly excluded the Southern members from voting in Congress and placed coercive pressure on Southern states to ratify. See ACKERMAN, supra note x, at 99-119, 207-34 (1998). We do not agree with those claims. As Akhil Amar has argued, members of Congress from the Southern states did not show up for the Thirteenth Amendment vote, and were properly excluded for the Fourteenth Amendment because they did not yet have republican
42 ended slavery.117 The Fourteenth Amendment provided a guarantee against state- sponsored discrimination in civil rights.118 The Fifteenth Amendment provided that African Americans could not be discriminated against in their right to vote on the basis of race or previous servitude.119
As we discuss briefly below, we believe that, if enforced according to their terms, these amendments would have contributed substantially to a “new birth of freedom” for African Americans that would have provided them the rights enjoyed by white males in 1789.120 Under this view, civil rights amendments have provided corrections are the provisions that African Americans in 1789 most obviously would have demanded. But, in any event, the Court now enforces these amendments as a charter prohibiting government discrimination against African Americans.121 Congress has also passed substantial law preventing discrimination under these amendments.122 If the Civil Rights amendments themselves needed correction to be effective, we believe that such previous corrections would be protected under the concept of precedent that is compatible with orginalism. 123 Thus, whether judicial correction is warranted today must be answered with the recognition that the worst defects of the exclusion are no longer in effect.
It is true that the exclusion of African Americans has potential effects on the Constitution even after the enforcement of the Civil Rights Amendments. In particular, the inclusion of African Americans might have resulted in changes to other provisions of the Constitution. For instance, some might say that their inclusion would have led to provisions in favor of affirmative action. But our theory of constitutional failure suggests the judiciary should not attempt to correct the Constitution to try to reflect such putative changes.
First, the search for the provisions that would have been included is highly speculative. It is very difficult to settle on what differences, if any, besides antidiscrimination provisions that the inclusion of African Americans would have prompted. For instance, take the question of whether the inclusion of African Americans would have prompted the inclusion of affirmative action provisions. It would be ill forms of government, given that they excluded African Americans, who made up a huge portion of their population. See Amar, supra x at 366-368. John Harrison provides evidence that whatever coercion was exerted was not the cause of ratification by Southern states. John Harrison, The Lawfulness of the Reconstruction Amendments, 68 U. CHI. L. REV. 375 451-452 (2001). We would add that any problem also seems to be harmless error from the perspective of our rationale for originalism. Given the large African American populations of Southern states, there is no doubt that these amendments would have been ratified if African Americans had been included in the franchise, as they should be under our theory of desirable constitutionalism. 117 U. S. CONST. Amendment XIII. 118 U.S. CONST. Amendment XIV. 119 U.S. CONST. Amendment XV. 120 See AKHIL REED AMAR, AMERICA’S CONSTITUTION: A BIOGRAPHY, 349-403 (2005). 121 See, e.g,, Brown v. Board of Education, 347 U.S. 483 (1954). We discuss Brown at greater length, see supra notes xx, and accompanying text. 122 See, e.g,, Voting Rights Act of 1965, Pub. L. No. 89-110, 79 Stat. 437 (codified as amended at 42 U.S.C. § § 1971, 1973 to 1973bb-1 (2000)). 123 See infra notes xx and accompanying text.
43 considered to extrapolate from the preferences of African Americans today to what they would have one hundred or two hundred years ago. In any event, it is not at all clear their participation would have made a substantial difference in a supermajoritarian process on issues not as central to their concerns as antidiscrimination provisions in light of the opposition from others that changes would have faced.
Second, disagreements on such elusive counterfactuals would easily be caught up in ideological disagreement about what provisions are desirable. Such divisions on fundamental issues, particularly framed in the emotional terms about the effect of African Americans on exclusion, could easily lead to a spiral of dissension threatening the integrity of the Constitution. Finally, given that any provision of the Constitution could potentially be affected by exclusion, however remote the possibility, this kind of process would create general uncertainty about the content of the Constitution. 124 Such uncertainty is the opposite of the solidity of political foundations that entrenchment is supposed to promote.
Finally, judicial updating would not create the discipline that makes for good long-term decisionmaking. Judges would recognize that they could always distinguish the precedents by which they established the principles believed necessary for correction. Thus, they would be under less pressure to establish principles that could stand the test of time.
We recognize that despite the Civil Rights Amendments, African Americans still faced practical exclusion for almost a century. While African Americans possessed rights formally after the passage of these amendments, for most of the time they failed to enjoy these rights in reality until the 1960s. The focus of our analysis is originalism today, not during that previous era.
But, in our view, insofar as the continuing lack of rights for African Americans was a legal failure, it was largely a failure of constitutional enforcement, not primarily of the content of the Constitution.125 Thus, the appropriate response even at that time may
124 Indeed, it useful to consider by analogy our stance toward legislation during the period of African- American exclusion. Given that statutes are passed by a majority (or to be precise given the effect of bicameralism a very mild supermajority) the votes of African Americans would likely make more difference to the statutory than the constitutional landscape. Yet few would argue that we should not interpret statutes passed during this period by reference to the intent of the actual legislature that passed them. The reasons we submit are similar to those for adhering to the original meaning of the Constitution. First, it would be difficult to reach agreement on how the presence of this excluded group would have changed legislation. Second, debate about that question would be divisive and detract from political legitimacy. Third, going forward, the excluded group can participate in proposals about new legislation, including those that repealed old statutes. 125 We recognize that some historians believe that the subordination of African Americans in the post reconstruction South was largely created by social custom and private violence and that Jim Crow laws thus were largely unnecessary to achieve subordination, see MICHAEL KLARMAN, FROM JIM CROW TO CIVIL RIGHTS: THE SUPREME COURT AND THE STRUGGLE FOR RACIAL EQUALITY 59-60 (2004). But we agree with critics who see legal restrictions on African Americans as greatly facilitating their subordination by preventing defections of Southerners for whom customs would not have been in their economic and
44 well have been not have been so much correction of the Constitution as enforcement of its provisions. In other words, the legal obstacles placed in front of African Americans in the late nineteenth and first half of the twentieth century that prevented their enjoying the promise of the Civil Rights Amendments was not substantially the result of orginalist interpretive principles but rather the failure of all three branches of government to follow the original meaning of the amendments. The discrimination in rights such as the right to vote126 and the right to sit on juries,127 as well as basic civil rights, like the right to contract,128 was a denial of the original meaning of civil war amendments.
Thus, if one believes, as we do, that the treatment of African Americans was the greatest political evil in the history of the American polity, the greatest indictment of constitutional interpretation during this era is not that the Court did not correct the Constitution to reflect some set of additional provisions that the inclusion of African Americans might have prompted. Instead, the formal root of the tragedy is that all the branches of government, including the Court, often did not enforce the original meaning of the provisions. The legacy of John Bingham and Thaddeus Stevens was encapsulated in these amendments, and yet the federal government, including the judiciary, too often abandoned their understanding of the words for that of officials like Charles Crisp, under whose speakership the congressional majority repealed most of the statutes enforcing the civil rights amendments. 129 personal interest. See David Bernstein and Ilya Somin, Judicial Power and Civil Rights Reconsidered, 114 YALE L. J. 591 (2004). 126 During Reconstruction Africans Americans voted in large numbers in the South but by the 1890s their participation had faded to insignificance. See MICHAEL KLARMAN, 29-32. An important cause was legislation that discriminated against blacks in their operation. Some statutes, for instance, required literacy of voters, but grandfathered in people whose ancestors voted at a time when African Americans could not vote. Others required literacy tests or tests of good character but imposed them in discriminatory manner. The Court’s response to the latter statutes was wholly inadequate to enforcing the antidiscrimination principle contained in the Fifteenth Amendment. See Giles v. Harris, 189 U.S. 475 (1903) (refusing to compel registration when blacks were being discriminated against in a good character test because compelling registration would make court complicit in the scheme.). Whatever the Court’s failures, however, Congress should have acted against these schemes to enforce the Civil Rights Amendments. One particularly glaring neglect was the failure to reduce the South’s proportion of representation insofar as their laws excluded African Americans from the franchise—a reduction contemplated by section 2 of the Fourteenth Amendment. See Amar, supra note x, at 127 The Court had declared that discriminating against blacks in seating jurors violated the Rourteenth Amendment, because it violated the civil rights of a defendant to an unbiased jury. See Strauder v. West Virginia, 100 U.S. 303 (1880). But, as with voting rights, as Reconstruction faded, Southern states administered jury selection in a discriminatory fashion, and neither the Court nor Congress did anything substantial to prevent this discrimination. 128 Plessy v. Ferguson, 163 U.S. 537 (1896) seems to us to be an example of the denial of equal enjoyment of the right to contract, guaranteed by the Fourteenth Amendment. African-Americans were denied the opportunity to contract to sit in the particular coaches (those restricted to whites) that they wished. The fact that whites were also denied the right to contract to sit in other coaches (those restricted to African- Americans), is irrelevant to the legitimacy of that denial, because it was the equality in contracting for a particular set of coaches (those in which whites also sat) that was at issue.. See John Harrison, Reconstructing the Privileges and Immunities Clause, 101 YALE. L. J. 1398, 1459 & 1462 (1992) (showing that laws requiring segregation, even if symmetrical, impermissibly defined citizens rights’ by reference to race). Plessy was extended to barbershops, taxicabs and all walks of life. See Klarman, supra note x, at 93. . 129 For the repeal, Act of February 8, 1894, ch. 25, 28 Stat. 36. For Charles Crisp’s civil rights views, see Ralph O’Hara Boyd, Service in the Midst of A Storm :James Edward O’Hara and Reconstruction in North
45
Even when voices in favor of the equality of African Americans had grown quieter with the fading of the memory of the civil war, the text that embodied those declarations of equality nevertheless remained to create a political dynamic that could have proved of very substantial value the newly freed slaves.130 This point underscores the great benefits that can flow from enforcing the Constitution as written even when the consensus that gave rise to the amendment has dissipated.131 Thus, from a constitutional perspective a substantial portion of the civil rights struggle of the 1960s can be seen as at least in some measure the completion and enforcement of the original meaning of the supermajoritarian correction of the Reconstruction Era.132
B. The Exclusion of Women
The issue of the exclusion of women from the franchise from 1789 to early in the last century also constitutes a serious defect. Despite its seriousness, however, we do not think it was as large a defect as the exclusion of African Americans. There is a better argument that women’s close connections at the time to the interests of male relatives gave them a measure of virtual representation.133 Moreover, it is not clear that most women believed they should be included in the franchise at the Framing..134
Like the exclusion of African Americans, the exclusion of women has also been substantially corrected. In 1920 we had a supermajoritarian correction to
Carolina, 2001 JOURNAL OF NEGRO HISTORY 319, 329 (describing Congressman Crisp’s legislative efforts on behalf of segregation). 130 For a similar point, albeit one made not in explicitly originalist terms, see GEORGE P. FLETCHER, OUR SECRET CONSTITUTION: HOW LINCOLN REDEFINED AMERICAN DEMOCRACY 129-140 (2001). 131 When the Supreme Court did this on occasion as in Buchanan v. Warley, 245 U.S. 60 (1917) in which it held racial segregation laws illegal, it had good effects. See Bernstein & Somin, supra, at 632-639. 132 The emphasis on Brown v. Board of Education in discussion of civil rights jurisprudence has obscured a more general analysis of the history of civil rights and constitutional interpretation. We believe that Brown can be defended on originalist grounds. See Michael W. McConnell, Originalism and the Desegregation Decisions, 81 VA. L. REV. 947 (1995). See also Harrison, supra note x, at 1462-1463.. But whether originalism is compatible with Brown or not, the world would have been so different had the Civil Rights Amendments not been nullified for decades by actions of all the branches that it is not even clear that Brown would have been necessary. That is, the greater economic and voting power that would have come with a fair enforcement of the Civil Rights Amendments would likely have eroded segregation in public school or at the very least assured that the school systems, however structured, operated only with substantial support from African American voters 133 See generally ALEXANDER KEYSSAR, THE THE RIGHT TO VOTE: THE CONTESTED HISTORY OF DEMOCRACY IN THE UNITED STATES 174-175 (2001) (long held and embedded view that women were virtually represented). The close connection between women and male relatives makes it likely that the women’s suffrage at the time of ratification would not have made a large difference. Indeed, we have some evidence to this effect. Women who owned the requisite amount of property were able to vote in New Jersey at this time, and politicians acted as if they would vote in the manner that others did in their area of the state. See Judith Apter Klinghoffer & Lois Elkis, “The Petticoat Electors:” Women’s Suffrage in New Jersey, 1776-1807, 12 J. EARLY REPUBLIC 199, 172 (1992). 134 THOMAS G. WEST, RACE, SEX, CLASS, AND JUSTICE IN THE ORIGINS OF AMERICA 75-77 (1997)(discussing the Founders’ views and drawing inferences as to the views of women about women’s suffrage)
46 supermajoritarian failure: the nineteenth amendment gave women the right to vote.135 Women now have also have been granted substantial rights against state sponsored discrimination. While it is true that these rights came about as a result of Supreme Court decisions, it seems quite clear that but for those decisions and the fear of nonoriginalist interpretation by the Supreme Court, they would have come about through the amendment process. Indeed, as described above,136 the chance to enact an equal rights amendment that would have put women’s equal protection rights on a more solid footing was undermined by Court’s attempt to anticipate the amendment process. It is a prime example of the costs of judicial updating rather than an argument to engage in the practice.
It might be thought even the passage of the nineteenth amendment and these Supreme Court precedents do not provide full correction. But, as with African Americans, it is extremely speculative to assess how the Constitution would have been changed, if at all, by the earlier inclusion of women in its making. For instance, while it sometimes argued that the inclusion of women would have least prevented statutes against abortions, current preferences of women provide reason to doubt this conclusion: the proportion of women who oppose abortion is at least as great as the proportion of men.137 Thus, it is certainly doubtful that the inclusion of women would have led to constitutionally protected abortion rights. As with judicial attempts to correct for the exclusion of African Americans, similar attempts on behalf of women would lead to divisions and lack the discipline for sound long-term decisionmaking provided by the amendment process.
C. Representation by States rather than People
Another defect of the Constitution derives from the decisions to give states rather than individuals themselves important representative roles. As a result, individuals may wield different levels of influence depending on where they live, because the relatively few individuals in states with small populations have the same influence as the relatively many individuals in states with large populations.
The original constitution making process set the stage for such imperfections. The delegations voted at the Philadelphia Convention by state and the original constitutional convention was ratified by state conventions. Constitutional amendments must be proposed by two thirds of each house of Congress,138 and thus the Senate with its equal representation for small and large states is an integral part of that process. The ratification of amendments is achieved through obtaining the support of three quarters of state conventions of legislatures and also incorporates representation through the states.139 Thus, the constitution-making process pervasively reflects state rather than
135 U.S. CONST. Amendment XIX. 136 See infra notes and accompanying text. 137 See J. W. DELLAPENNA, DISPELLING THE MYTHS OF ABORTION HISTORY 958 (Durham: Carolina Academic Press, 2006). 138 U.S. CONST. Art. V. 139 Id.
47 individual representation and this permits some individuals to have more voice in shaping the document than others. This process is a departure from desirable conditions for constitution making because it is individuals rather than states that ultimately have value and therefore it is important to assure directly that the Constitution has the consensus support of individuals rather than the states.
Not surprisingly, given this defect in constitutional politics, the Constitution establishes a structure for ordinary politics that also relies upon state representation as well as individual representation, permitting some individuals to potentially wield more influence there as well. Most notably, the structure of Senate provides individuals in different states with widely different levels of influence not only on legislation but also on appointments and treaties, because the Senate must approve these presidential decisions.140 The officials appointed include Supreme Court justices who in turn influence the interpretation of the Constitution.141 Like state representation in the amendment process, these constitutional provisions have never been corrected.
Despite the absence of supermajoritarian correction, our theory of constitutional failure would not justify judicial correction. First, we describe why this defect in practice is not as serious as it might at first seem. Second, we show that this defect is impossible to correct without undermining the legitimacy of the Constitution. In this case, judicial correction would in effect require junking the Constitution.
State representation in the constitution making process is not likely to substantially distort the results compared to what individual representation would have provided.142 First, as we have noted above,143 in the origination process larger states may have effectively wielded greater influence in the ratification process, thus compensating in some measure for this defect. Second, even as to the amendment process the danger that a large group of small states representing a minority of the population can pass a constitutional amendment is small. 144 Proposed constitutional
140 We model the influence of Senate on judicial appointments in John O. McGinnis & Michael B. Rappaport, The Judicial Filibuster, The Median Senator, and The Countermajoritarian Difficulty, 2005 SUP. CT. REV. 257. 141 The Electoral College also creates a system of state rather than individual representation and gives the votes of some individuals more weight than others. On its face, the electoral college, like the Senate, disadvantages people in large states and advantages individuals in small states, but this appearance is deceiving. So long as states retain the unit rule (the rule awarding all electoral votes to the statewide winner) the large states are the most advantaged, because large states have a greater chance of being decisive in the Electoral College. See Robert E. Bennett, Popular Election of the President Without a Constitutional Amendment, 4 GREEN BAG 241-242 (2001). Thus, conditional on retaining the Senate, the Electoral College may improve rather than exacerbate the problem of equality of representation. 142 Given the loyalty of citizens to their states rather than to a larger national entity that had not yet fully come into being, it seems fanciful that some element of representation by state could have been avoided. Given that reality, it was still better to have a supermajoritarian than majoritarian process for proposing and ratifying the Constitution. See Our Supermajoritarian Constitution at 742. 143 See notes xx and accompanying text. 144 Small states may have disproportionate power to pass legislation in the ordinary legislative process. Even though legislation also has to be passed by the House, small states can get some items passed by trading their disproportionate power in the Senate to block legislation that large states might desire. As a result small states tend to get more pork barrel spending per capita. See FRANCIS L. LEE & BRUCE L.
48 amendments still need the approval of the two third of the members of House of Representatives as well as the Senate and that chamber is elected on the basis of popular rather than state representation.145 Thus, we now turn to the opposite and more substantial danger—that a small number of small states can block a constitutional amendment.
This danger potentially undermines sound constitutionalism, because the individuals living in small states would have more blocking power than individuals living in big states. But for the most part this danger is unlikely be realized, because support for policy measures among the states is not substantially correlated with the size of a state’s population and thus state support will not be a bad proxy for individual support. Ideologically, there are conservative big states, like Texas and Florida, and liberal or relatively liberal states like New York and California. There are liberal small states, like Hawaii and Rhode Island and conservative small states like Wyoming and Alaska. We recognize that there are some important exceptions where support is substantially correlated with population size: for instance, states with small populations disproportionately represent farmers 146 Nevertheless, in deciding whether judicial correction is advisable, it is important to recognize that the extent of the problem is not as pervasive as might be initially thought. One powerful statistical confirmation of this point is that the ideological median member of the Senate has closely tracked the median ideological member of the House for the last seventy years.147
The problem of state representation is unlikely to be corrected in the foreseeable future. As discussed above, the Constitution prohibits depriving any state without its consent of its equal representation in the Senate and prohibits that provision from being amended.148 But if the costs of the defect of state representation are circumscribed, the costs of correcting it through judicial updating are very large. To be sure, it is possible to isolate the provisions responsible for providing representation to states rather than people. The most important establishes the structure of the Senate and the next most important provides for the state ratification of constitutional amendments. But departing from the text of the provisions that structure the basic political processes of the Constitution would cast doubt on the legitimacy of the document. Indeed, while many scholars have defended departures from orginalism in matters with few evident process defects, such as the due process clause, few have argued for judicial correction of the state representation provisions for federal governance to fit a constitutional vision of one-person one-vote.
OPPENHEIMER, SIZING UP THE SENATE (1999). For reasons we discuss below, we nevertheless do not believe that this disproportion in power poses a serious threat to democratic governance. See infra notes xx and accompanying text. Given that constitutional amendments for the last two centuries have concerned a single subject such trades do not seem to have much affected the constitutional amendment process. 145 We have already explained why state applications for a convention are largely a dead letter in the convention process. See notes xx and accompanying text. 146 John A. Ragosta, Why Lumber and Agriculture Matter, 14 KAN. J. L. & PUB. POL. 413, 439 (2005). 147 See Keith Poole,105th Congress at http://voteview.com/c105/c105.htm 148 Even if the Constitution did not include such a provision, a constitutional amendment to eliminate equal representation would not likely pass given that more than a quarter of a states—the smaller ones—benefit from that equal representation.
49 D. The Stringency of the Constitutional Amendment Process
As we have already noted,149 if judges were originalists, the rules for amending the constitution would be of reasonable stringency. That is, the supermajority rule in Article V reasonably balances the need to protect political stability and to limit majority rule against the need to be flexible enough to accommodate technological and social change. But since in modern times many judges have not followed originalism but arrogated to themselves the power to update the Constitution, the strictness of the amendment process gives them a wide policy space to construct norms according to their preferences. Because of strictness, people cannot easily respond to ad hoc judicial updating. Moreover, the strictness of the amendment process may make it easier for judges to believe that they need to update the Constitution.
To state this defect, however, is to show that judicial correction is not the solution. Judicial discretion, which is involved in correction as well as updating, is the problem that has led to the defect in the first place. Moreover, to correct this problem one would have to change the amendment process and that kind of change would undermine the legitimacy of the Constitution.
VII. Original Methods Originalism: The Constitution’s Interpretive Rules
In this section we demonstrate how the theory of original methods originalism would work in the context of the United States Constitution. We discuss both the way to discover the original interpretive rules and what the general content of those rules would likely be. We do not here have the space to provide a comprehensive or definitive account of interpretive rules. Our purpose is much more limited. We first show that there are coherent methods to derive interpretive rules from the Constitution and thus that a theory drawn from the abstract consideration of a desirable constitution can be applied to the particulars of a real one.
We then describe the content of the interpretive rules not in full or with precision but sufficiently to show that original methods originalism in the context of the United States Constitution very likely encompasses originalism as conventionally understood and is antagonistic to principles of living constitutionalism. We suggest that original methods originalism also, however, is likely to add some features that improve the determinacy of conventional originalism by providing ways to resolve ambiguities in the text of the Constitution.
A. Discovering the Original Methods
According to our analysis of originalism, the methods that enactors expected to be applied to interpret the Constitution are the right interpretive principles to preserve its benefits today. The reason for choosing the enactors’ rules is that it was the consensus approval of the enactors from which those benefits derive. Thus, it is the principles of
149 See supra notes xx and accompanying text.
50 interpretation they thought would be applied that guided their votes for the Constitution and thus would best preserve these benefits.
This conclusion is of major importance to originalism, because it shows that interpretive rules are integral to the theory. Discarding these rules undermines advantages that an interpretive theory can provide by linking decisions today to the past consensus of the enactors. To embrace originalism without embracing the enactors’ interpretive principles is like trying to use software that is missing valuable lines of code.
As a result, it is a fundamental mistake to believe we can find the principles to reconstruct the meaning of the Constitution’s words by appealing to our own favorite theory of meaning, however philosophically compelling. That philosophical theory may or not have influenced the enactors’ expectations of how the Constitution was to be interpreted. Only by connecting our interpretive rules to theirs do we retain the full benefits of the constitution making process.
One can derive the interpretive rules of the enactors in two possible ways. First, they could be derived from the text of the Constitution either directly or by implication.150 For instance, it might be thought that vesting the federal judiciary with ‘judicial power of the United States” would imply that the federal judiciary would deploy those interpretive rules of the time that were constitutive of judging.
Second, it is also possible that the Constitution does not directly provide a menu of interpretive rules. In that case, interpretive rules depend on the intent of the enactors. We must look at historical background to discover their expectations. 151
It is important to note, however, that even reliance on intent as the principle for discovering the original interpretive methods does not necessarily mean that the original public meaning of text is not the central working principle for construing the Constitution. As we discuss below, there is substantial evidence that enactors did believe that the original public meaning of the words of the Constitution would be the best guide to their interpretation. Original public meaning should be controlling, if that is the method of interpretation the enactors expected to be applied.
Nor does looking to the intent of the enactors to discover interpretive rules reject the relevance of the text and structure of the Constitution. In fact, the Constitution may provide very important evidence for the interpretive principles that the enactors expected to be applied. For instance, in the absence of other evidence, it is reasonable to believe the enactors would have expected the application of interpretive principles consistent with structure of the Constitution they established. In particular, we discuss the relevance of the separation of powers for their interpretive principles. 152
150 See Saikrishna Prakash, Do We Need A New Legal Regime after Sept. 11? The Constitution as Suicide Pact, NOTRE DAME L. REV. 1299, 1312 (2004). 151 Id. 152 Like any group, the enactors may sometimes have disagreed in their expectations. We believe that in the case of disagreement, subsequent interpreters should embrace the rule favored by the plurality of
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B. The Content of Original Methods Originalism in our Constitution
Here we sketch the likely content of the original methods for the United States Constitution. This is a vast subject and we do not have space in an article devoted to a theoretical defense of original methods originalism to give a definitive account of the actual historical practices. But our view is that the range of possibilities of the interpretive rules embraced by originalism are within the family of originalism as conventionally understood—that is either original meaning originalism or original intent originalism. These principles do not encompass living constitutionalism, or what we call judicial updating, to take account of a changed technological or moral landscape, because there is little or no evidence that the enactors interpreted written legal enactments in that way.
We believe it would be highly relevant to consider how the enactors expected statutes as well as constitutions to be interpreted, because construing statutes was the interpretation of written enactments with which the enactors of the original Constitution were most familiar. Moreover, the practice immediately after the Constitution was passed can be as probative as that before its enactment. The text and structure of the Constitution may have themselves influenced how the enactors expected the Constitution and the statutes passed under it would be interpreted. In the absence of attacks on the constitutional interpretation embraced in the early republic, it seems reasonable to believe that the interpreters in the early Republic, particularly those who were alive at the time of the enactment of the Constitution, were generally following expectations.
Our view is that all of these roads lead to Rome, that is, some form of originalism. There is evidence from statutory interpretation that enactors may have given priority to the text and some evidence that that they would have given priority to intent. Similarly, in the constitutional interpretation there is evidence that they would give priority to text and some evidence that they would give priority to intent.153 While we find the evidence that they gave priority to text of greater weight, that finding is less important for purposes of this discussion. The important point is that there is no or very little evidence they embraced a theory of living constitutionalism.
interpreters. Once there is an ambiguity in text approved by a supermajority, there is no choice but to use an interpretive rule. As a result, requiring a supermajoritarian or even majoritarian consensus for interpretive principles would also be inferior to applying interpretive principles with mere plurality support. First, such a requirement would result in discarding principles that did inform a large proportion of votes for the Constitution and thus would in some measure sever those votes from the manner in which the Constitution was interpreted. Second, it would deprive interpreters of principles that may resolve ambiguities in the document. Thus, greater clarity as well as a better approximation of beneficial meaning must also be counted a gain from using interpretive principles endorsed by the plurality. 153 There is not necessarily a sharp distinction between these two forms of originalism, given that a text is naturally understood in light of the purposes of its drafters. See Monaghan, Our Perfect Constitution, supra note x, at 375.
52 1. Interpretation of Statutes
One view rooted in Blackstone and familiar to the enactors would have been that interpretation should follow the intent or legislative purpose of a legal enactment such as a statute.154 Other scholars have suggested that American decisions around the time of the Framing followed a similar “equity of the statute” approach, where judges cut back or expanded the meaning of a statute depending on their divination of the objective the legislature had in passing it.155 We see that approach as broadly consonant with original intent originalism.
On the other hand, even if intentionalism was the predominant view in statutory interpretation before the enactment of the Constitution, it may not have continued as the predominant view once the Constitution was enacted. The Constitution established a much clearer system of separations of powers than was present in the British system.156 The separation of powers suggests that the judiciary is fundamentally separate from the legislature and executive. Thus, given this sharp demarcation, the judiciary is not legally present at political debates in Congress or at the signing of bills by the President (or for that matter at the ratification conventions). It lacks the authority to draw out intent from these internal deliberations. It stands outside the legislature as much as the public does and, like them, simply receives the final product—the legal commands that are passed by both Houses of Congress and signed by the President.157 This new constitutional structure and the sensibility that accompanies it likely influenced the enactors in their expectations. One confirmation of this view is the evidence that the Marshall Court became more textualist in its statutory interpretation than courts that preceded the Constitution.158
2. Constitutional Interpretation
154 1 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAW OF ENGLAND 59 (1765) ) (The fairest and most rational method to interpret the will of the legislator, is by exploring his intentions at the time when the law was made, by signs the most natural and probable). 155 William N. Eskridge, Jr., All About Words: Early Understandings of the “Judicial Power” in Statutory Interpretation, 1776-1806, 101 COLUM. L. REV. 990 (2001). While Eskridge argues against an originalist/textualist conception in favor of an equity of the statute approach, he does not present evidence in favor of a dynamic conception of statutory interpretation, at least not one where the statute is updated through the application of evolving principles in the manner of the living Constitution. Id. at 999 & 1003- 04. For example, the instance of a statutory interpretation that Eskridge explicitly describes as “dynamic” simply involves the judiciary’s refusal to interpret a recent statute to reach a result so inequitable that it cannot believe the legislature would have intended it. Id at 1018, n.126 & 1023. We understand this court’s action as having chosen a static intentionalist approach in preference to a textualist one, not as having adopted an approach that interprets based on changing values or circumstances over time, which is how Eskridge presents the dynamic approach in other scholarship. See William N. Eskridge, Jr, Dynamic Statutory Interpretation, 135 U. PA. L. REV. 1479 (1987) (defending a dynamic approach to statutory interpretation that allows departure from the text and intent of a statute in favor of changing values). 156 See Daryl Levinson & Richard H. Pildes, Separation of Parties, not Powers, 119 HARV. L. REV. 2311, 2325 (2006) (outlining the difference between the classical American separation of powers system and the British parliamentary system). 157 See Mark L. Movsesian, Are Statutes Legislative Bargains: The Failure of the Contract Analogy in Statutory Interpretation, 76 N.C.L. REV. 1145, 1176-1178 (1998) (understanding the judicial role as limited to interpreting the product placed before the public). 158 John F. Manning, Textualism and the Equity of the Statute, 101 COLUM.. L. REV. 1, 90-96 (2001).
53
About constitutional interpretation, there is also room for debate between more intentionalist and more textualist understandings. Original intent with respect to the United States Constitution in fact divides into two categories: the intentions of the enactors in the state conventions or the intentions from those in the Philadelphia convention itself. There seems much more support among the enactors for giving weight to the intent of those participated in the state conventions, not least because the records of the Philadelphia Convention were not published until fifty years later. James Madison himself, the father of the Constitution, endorsed using the intent of the ratifiers, if only where necessary to resolve ambiguities.159
But in our view important objections have been made to the original intent view of originalism. For instance, Jefferson Powell argues that judges at the time of the enactment were guided by the ordinary understanding of the words together with certain hermeneutical conventions of the common law.160 While this article thus opposes the original intent understanding of originalism, it seems quite consistent with an original public meaning understanding of originalism. 161 James Madison himself sum ups best the view that the original public meaning view of constitutional interpretation: “I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable . . . exercise of its powers.”162 The opinions of the Marshall Court, in particular, seem to us
159 “If we were to look therefore, for the meaning of the instrument, beyond the face of the instrument, we must look for it not in the general convention . . . but in the state conventions, which accepted and ratified the constitution.” J. Madison, speech of Apr. 6, 1796, in J.C.A. Stagg, ed., 16 THE PAPERS OF JAMES MADISON 290, 295-96 (1989). 160 See e.g., H. Jefferson Powell, The Original Understanding of Original Intent, 98 HARV. L. REV. 885 (1985) 161 Powell’s essential claim in his article is focused much more on original intent originalism: he argues that “there was no expectation that future interpreters would seek the document’s meaning in the intentions of the delegates to the 1787 convention. Powell at 886. As others have noted the evidence he adduces is not necessarily inconsistent with relying in the intentions of the ratifiers at the conventions. See Robert N. Clinton, Original Understanding, Legal Realism, and the Interpretation of "This Constitution," 72 IOWA. 1177 (1987); Charles A. Lofgren, The Original Understanding of Original Intent?, 5 CONST. COMM. 77 (1989). But, in any event, his main point that the document would be construed to bring out” the intrinsic meaning of its words,”id. at 903, is quite consistent with original meaning originalism. 162 Letter from James Madison to Henry Lee (June 25, 1824), in 9 THE WRITINGS OF JAMES MADISON, at 192 (G. Hunt ed., 1910). In an interesting recent article, Bill Treanor has written about judicial review before Marbury and even before the Framing of the Constitution. Although his main focus is to establish the existence of judicial review during that period, not the interpretative rules under which it is exercised, he does at times suggest that judges did not follow an originalist approach. See, e.g, William Michael Treanor, Judicial Review Before Marbury, 58 STAN. L. REV 455, 475, 515-517, 539 (2005). We do not read most of the cases Treanor adduces to be inconsistent with originalism. For instance, consulting background principles to understand the text of a statute is consistent with originalism, as is reliance on a constitutional structure established in the text. Even reference to policy reasons may well be references to the intent behind constitutional provisions, which can also be a kind of originalism. One difficulty with relating many of these opinions to a standard for interpretative rules is that their reasoning is cryptic and unreflective. For this reason, we tend to believe that more deliberative reflection on the proper modes of interpretation, like those we have quoted from James Madison, provides a surer guide to the enactors’ interpretative rules.
54 to comport with Madison’s dictum with their emphasis on the original meaning of the text in the context of the rest of the structure of the Constitution.163
Finally, we observe that original methods originalism would also embrace, as Jefferson Powell suggests, the conventions of legal interpretation that enactors expected to resolve ambiguities in the original public meaning. Madison himself noted that “established rules of interpretation” were useful to construing the Constitution.164 There is already important work being undertaken on these questions.165 Thus, we believe that original methods originalism may well reveal specific canons of interpretation that will help resolve the inevitable ambiguities in the public meaning of texts.
What more research is highly unlikely to show is that enactors embraced living constitutionalism as a general matter.166 Only that kind of evidence could collapse the distinction between original methods originalism and interpretive methods that update the Constitution.
VIII. Precedent and Original Methods Originalism
It is often asserted that originalism is incompatible with respect for precedent.167 If this claim were true, originalism might seem an implausible jurisprudence, both because it would conflict with so much practice168 and because it would become a dynamo for reconsidering every legal question, unsettling the polity. In this section, we briefly show that nothing in original methods originalism proves intrinsically incompatible with precedent. Indeed, we sketch our view that the Constitution either requires judges to operate with precedent or at least permits them to follow precedent as a matter of common or general law.
Those who suggest that originalism is incompatible with precedent either argue that the Constitution itself forecloses reliance on precedent169 or that precedent is
163 See, e.g, Antonin Scalia, Originalism: The Lesser Evil, 57 U. CIN. L. REV. 849, 854 (1989) (lauding Marshall Court for confining analysis to strict textualism). . 164 Letter from James Madison to Martin Van Buren (July 5, 1830), in 4 LETTERS AND OTHER WRITINGS OF JAMES MADISON 89 (1884). 165 See Caleb Nelson, Orginalism and Interpretive Conventions, 70 U. CHI. L. REV. 519 (2003) 166 It is possible that evidence might develop that enactors did intend some specific words to evolve in meaning. For instance, perhaps treaty was meant to mean whatever was its meaning in the international law of the future. We must be open to the possibility that enactors had special interpretative rules for some word or phrase. Here we merely describe the case for a default rule of originalism that is in opposition to living constitutionalism. 167 See Gary Lawson, The Constitutional Case Against Precedent, 17 HARV. J.L. & PUB. POL'Y 23 (1994); Michael Stokes Paulsen, The Intrinsically Corrupting Influence of Precedent, 22 CONST. COMMENT. 289 (2005). 168 See Henry Paul Monaghan, Stare Decisis and Constitutional Adjudication, 88 COLUM. L. REV. 723, 727 (1988) (showing that originalism without reference to precedent is not a plausible description of our constitutional jurisprudence). 169 See Lawson, supra note, x (suggesting that the Supremacy Clause makes the Constitution controlling over federal statutes).
55 repugnant to originalism as a theory of constitutional construction.170 We do not believe either claim is correct as far as original methods originalism is concerned. There is a fairly strong argument that Constitution does requires judges to deploy a minimal concept of precedent and a powerful argument that judges may apply precedent as a matter of the common or general law.171 Under either of these views, nothing in original methods originalism is inconsistent with precedent, because nothing required or permitted by the Constitution can be inconsistent with the reasonable expectations of its enactors.
First, Article III invests the judicial power of the United States in the federal courts.172 It can be plausibly argued that the judicial power is best understood as requiring judges to deploy at least a minimal concept of precedent, such as that in which the Court gives some weight to decisions on issues that have been repeatedly resolved for a substantial period by prior courts. Following very well established precedent was an essential aspect of the judging that the enactors knew and thus might well be deemed a constitutive element of judicial power.173
It has been correctly observed that the fact that the judges deployed a legal concept at the time of the Framing does not necessarily make is a requisite element of Article III’s judicial power.174 Judges, for instance, also employed a hearsay rule but the federal courts are not required to deploy one now in order properly to exercise judicial power.175 But precedent was different from hearsay rules in that it was pervasively and widely recognized as an aspect of judging,176 not simply one the multitude of rules judges happened to apply. For instance, it seems to us quite plausible that even before the enactment of the Constitution judges who announced that they would give no weight to a series of cases all reflecting the same rule of decision would have been thought to have been properly exercising their judicial authority. Given the Constitution’s even greater emphasis on the separation of powers, the argument that following some minimal concept of precedent is constitutive of judging became even stronger with its ratification. Precedent promotes the rule of law and the separation of powers by clarifying the Constitution’s commands and constraining the discretion of judges.
No doubt such constitutionally required precedent rules would have been narrow in scope. But whatever the status of precedent as a requisite element of the judicial power of the United States, it seems clear that judges have the authority under the Constitution to deploy precedent as part of the common or general law. At the time of the Framing judges had common law powers to set rules of evidence and others aspects of judicial procedure in the absence of the direction of the legislature. Precedent can in fact
170 See Randy Barnett, Trumping Precedent with Original Understanding: Not as Radical as it Sounds, 23 CONST. COMM. x (2005) (suggesting that many forms of precedent are inconsistent with orginalist theory). 171 See Monaghan at 754 (suggesting these two sources for precedent). 172 U. S. CONST. Art. III, sec. 1. 173 For a gathering of historical sources in support of this argument, see Anasastoff v. United States, 223 F. 898, 900-903 (8th Cir. 1999) (Richard Arnold, J.) vacated as moot, 235 F. 3d1054 (2000). 174 See John Harrison, The Power of Congress over Rules of Precedent, 50 DUKE L. J. 503, 524 (200). 175 Id. 176 See Caleb Nelson, Orginalism and Interpretive Conventions, 70 U. CHI. L. REV. 519, 598 (2003)
56 be understood as an evidentiary presumption to help determine what the law is.177 Nothing in the Constitution suggests that judges lost such common law authority when they were vested with the judicial power of the United States. Recent scholarship has shown that the notion of following precedent was in fact widespread at the Founding.178
There are famous examples of legal interpreters following precedent from the early republic. Madison said he would follow precedent in declining to veto a bank bill, although he had originally understood a national bank to be unconstitutional.179 In McCulloch v. Maryland, Chief Justice Marshall began his opinion by stating that the question of the national bank’s constitutionality “can scarcely be considered as an open question . .. .”180 He then proceeds to consider previous determinations of the bank’s constitutionality, including those in the executive and the legislature.181
The dog that did not bark seems to us also probative. Many constitutional issues in the early republic were contentious and, given that the prevailing political constellation changed from Federalist to Democratic-Republican, politicians and theorists would have ample incentives not only to disagree with legal precedent made in previous eras but to declare it irrelevant as a matter of constitutional law. Yet to our knowledge such claims are notably absent from this period.
Whether the Constitution requires the application of precedent or simply permits its application, its legal status makes it compatible with original methods originalism. Original methods originalism permits practices either required or permitted by the Constitution.
Nevertheless, we do not understand precedent ever to replace the original meaning of the Constitution. Originalism remains the sole route to establishing its meaning. Precedent is to be followed because it serves other functions. In our view, the best normative arguments for precedent are that it can enhance predictability, clarity, and stability. An ideal theory of the common or general law of precedent would balance these considerations against the benefits derived from preserving the original meaning of the Constitution.
Conclusion
In this article we have defended original methods originalism as the preferable interpretive theory of a desirable constitution and also of the Constitution that we have. The desirable constitution provides a regulative ideal for constitutional theory. We thus described the important elements of a desirable constitution and the reasons that a
177 Harrison at 512. 178 Id. at 598 (seeing precedent as part of the Framers’ vision of general law). 179 Letter from James Madison to Charles Jared Ingersoll, (June 25, 1831) in THE MIND OF THE FOUNDER: SOURCES OF POLITICAL THOUGHT OF JAMES MADISON 389, 393 (Marvin Meyer, ed.1981) (“a course of precedents, amounting the requisite evidence of the national mind and intention”). 180 17 U.S. 436, 400 (1819). 181 Id.
57 supermajoritarian process was likely to achieve them. Following the original methods of the enactors preserves the benefits of the supermajoritarian process and thus is most likely to permit a desirable constitution to endure through the ages.
We then considered the question of how the United States Constitution measures up to these ideals. The original constitution-making process did well in formulating appropriate formal requirements for enactment: these were supermajoritarian rules of reasonable stringency that gave each generation the same formal opportunity to put their values into the Constitution. But it failed with its rules for the franchise in the constitution making process by excluding women and particularly the enslaved African Americans.
This failure requires us to consider what the effect of supermajoritarian failure is on an existing constitution. We conclude that there are three options to address this failure: junking the constitution, using judicial discretion to correct the constitution or following the original understanding. Junking the Constitution of the United States is not a realistic option today given the benefits and stability it provides and the uncertainty that the process of creating a new constitution would create. Judicial correction of the Constitution would have substantial costs in terms of its legitimacy and consensus, not least because there would be substantial disagreement over how it would be corrected.
We show that these costs are not worth paying at the current time because there has been supermajoritarian correction of the worst defects engendered by exclusion and it is difficult to determine what other effect the exclusion would have had on the original Constitution. Thus, there is little evidence that judicial discretion would correct whatever defects remain without introducing worse ones.
Our positions on the nature of the ideal constitution and our own constitution are severable. One may agree with our view that “original methods originalism” is the proper interpretive method for the desirable constitution, but nevertheless contend that judicial correction is needed for process defects of our own Constitution. While we believe that rejecting originalism for the United States Constitution as a whole is to be guilty of a nirvana fallacy, even acceptance of our views of about the interpretation of the desirable constitution has important implications for contemporary constitutional law. First, in the absence of a strong argument for judicial correction of a particular provision, orginalism should hold sway. Second, now that the constitution-making process has an inclusive franchise, all future constitutional amendments as well as most of those ratified in the twentieth century should be interpreted according to original methods originalism. Whatever its past status, interpreting the Constitution according to the principles of past enactors still has a future.
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