What Constitutionalism Means
From the Sept. 19, 2011, issue of NR.


Ramesh Ponnuru

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

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

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

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

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

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

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

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

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