Since the appointment of Neil Gorsuch to the Supreme Court, we have been hearing much about the two contending approaches to the Constitution. These are often referred to as “originalism“ and “living constitutionalism,” but these terms obscure the underlying issue. What is at stake, at least in the constitutional context, is how our Constitution should be changed. Should it be through the democratic, deliberative amendment process prescribed by Article V of the Constitution, or through the gradual accretion of shifting judicial interpretations? Fundamentally, originalism is the argument for democratic amendment, and living constitutionalism is the practice of what is best described as “judicial amendment.” Terminology shapes how we understand an issue. The argument is not between two academic schools of thought; it is about whether the judiciary can supersede Article V of the Constitution. It is about whether the people or the judiciary ultimately determine our foundational law.
These fundamental questions have been before the Court since its current term started in October (as well as before the Senate as it votes on President Trump’s appointments to fill the remaining 144 vacant federal judgeships). For example, in recent years, by one-vote majorities, the Court has created a new constitutional doctrine that homosexuality is to be given the same special protected status as race and gender. Two years ago, five justices extended this doctrine by ruling in Obergefell v. Hodges that all states must recognize same-sex marriages. Earlier this week, the court heard arguments in the appeal of a Colorado case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which the Court will decide whether this judicially created status of gays as a special protected class will override the First Amendment’s guarantees of freedom of speech and religious exercise.
The question extends well beyond social issues. Last month the Court heard Gill v. Whitford, in which a lower federal court in Wisconsin held that partisan gerrymandering was unconstitutional. If the Court upholds the lower-court decision, it will be effectively amending the Constitution to outlaw a practice that has existed since the first federal election, in 1788–89. How else would one describe a ruling that this longstanding practice (however unseemly) has suddenly become unconstitutional after 228 years?
Of course, to be fair, judicial amendment has been going on for a long time, stretching back at least to the Dred Scott decision of 1857. Obergefell, Masterpiece Cakeshop, and Gill v. Whitford are just the most recent in a long line of cases going back to Dred Scott in which the federal courts, for better or for ill, have engaged in constitutional interpretation so disconnected from the text as to constitute de facto amendment of the Constitution.
In general, Supreme Court justices do not openly admit to engaging in judicial amendment. However, in unofficial moments the truth comes through. For example, the late Supreme Court justice William Brennan was said to enjoy quizzing his new law clerks on how one made new constitutional law. The bright young law-school graduates would struggle to recall the amendment procedures set out in Article V. Then the justice would hold his hand up with all five fingers outstretched, indicating that five votes on the Supreme Court were what really changed the Constitution.
Was Justice Brennan right? Are five members of the Supreme Court the constitutional equivalent of two-thirds of both houses of Congress (or an Article V convention called by two thirds of the states), along with 38 states’ legislatures? How is it that the oldest written constitution in the world, of one of the oldest democratic republics in the world, can be changed with no participation by the people, through the decree of five unelected and unaccountable judges? The issue can be even more stark. For example, it is generally accepted that Justice Anthony Kennedy was the deciding swing vote in Obergefell, and plaintiffs look to him to provide the same in Masterpiece Cakeshop and Gill v. Whitford. How is it that, in a great democratic republic of over 300 million people, such major social and political issues seem to be permanently and irrevocably decided by one 81-year-old man?
The Loneliest Article
Today Article V is perhaps the most neglected part of our Constitution. Even the emoluments clause, little more than a sentence fragment, gets more notice nowadays. Forests have fallen in service of the debate over the Supreme Court’s power, or lack thereof, to change the Constitution. Yet this debate rarely mentions Article V. While originalists refer to Article V as the proper method of constitutional change, the bulk of their work focuses on fighting the “living constitutionalists” in the courtroom and classroom. And those who support Justice Brennan’s view of the Supreme Court’s power barely mention Article V.
Perhaps this is not surprising, since Article V explicitly provides that the Constitution is to be changed by elected legislatures, with no mention of the courts. The Constitution’s Framers all recognized that their document would need to be altered over time. Their solution was the democratic, deliberative process set out in Article V, not the fiat of the Supreme Court. In his farewell address, George Washington summarized their view well when he declared that if, “in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way, which the constitution designates. But let there be no change by usurpation.” Neither Article V nor any other provision of the Constitution authorizes the Supreme Court, citing nothing but itself as authority, to change the Constitution.
However, if Article V is the only proper means of constitutional change, we must acknowledge that the U.S. Constitution has become the most difficult in the world to amend. If judges are to be persuaded not to change the Constitution on their own, Article V must be reformed in order to make it a plausible alternative to judicial amendment.
The Framers’ solution was the democratic, deliberative process set out in Article V, not the fiat of the Supreme Court.
Although originalism is currently associated most often with conservatives, this is not a liberal-vs.-conservative issue. While progressives may cheer specific cases like Obergefell, recent years have seen them deliver numerous harsh assessments of the Supreme Court’s overall record, bewailing its interpretations of the Constitution that purportedly favor the wealthy. Just the last years have seen titles such as Erwin Chemerinsky’s The Case Against the Supreme Court and Ian Milhiser’s Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted. Consider the doctrine of corporate personhood. Most progressives first focused on it in connection with the Court’s 2010 Citizens United decision limiting campaign-finance laws, but the doctrine dates back to Supreme Court pronouncements of the 19th century. So while progressives attack the doctrine of corporate personhood as an invention of the Supreme Court, jurisprudentially it rests on the same foundation as Obergefell. Both present the question of whether the Supreme Court can add to the Constitution while disregarding Article V.
How Judicial Amendment Undermines Article V
Not only has the Supreme Court ignored the clear and explicit requirements of Article V, but in doing so it has completely undermined the democratic amendment process laid out in Article V. This is well illustrated by the history of the Equal Rights Amendment, the last constitutional amendment to be passed by the required two-thirds vote in Congress (in 1972). It was quickly ratified by many states — 22 by the end of the year. However, a year later, the Court decided in Frontiero v. Richardson that some forms of sex discrimination were prohibited by the 14th Amendment. Immediately after the Frontiero decision was issued, in May 1973, the pace of state ratifications of the ERA dropped precipitously, and a few states voted to rescind their ratifications. Indeed, after Frontiero as many states voted to rescind their previous ratifications as voted to ratify. Counterfactuals are always problematic, and there was growing opposition to the ERA on other grounds, but it seems likely that Frontiero took some of the wind out of the sails of the ERA ratification drive. Without Frontiero, there would have been greater energy behind ERA ratification.
Even if we admit that the Court may take account of changed political and social views in updating constitutional meaning, this principle should not be interpreted to allow amendment on the cheap. Respect for Article V would require that the changed views must be very broadly accepted, certainly far more broadly than gay marriage before Obergefell, before they can influence the Court’s deliberations. (Only twelve states had democratically authorized gay marriage by legislation or referendum before Obergefell, in contrast to the 38 states required under Article V to amend the Constitution.)
In his book Making Our Democracy Work, Justice Stephen Breyer has argued eloquently that the Supreme Court should seek in its decision-making to promote democratic governance. How does it promote democratic governance for unelected judges to supersede the explicitly democratic procedures of Article V? Why bother meeting the requirements of Article V if the Supreme Court can change the Constitution so much more easily? When we have a written Constitution that explicitly lays out the standards for amendment, the Court should give deference to those standards. The Supreme Court has no exemption from Article V and is as bound by it as much as by any other part of the Constitution. So if the procedure for amending the Constitution is too cumbersome, instead of the Court’s assuming the powers granted by Article V to the democratic departments of government, the more democratic solution would be for the justices to urge those democratic departments to reform Article V.
Enabling Proper Constitutional Change — Reforming Article V
What would such a reform consist of? A few simple adjustments could do much to return the ultimate power of constitutional change to the people. No constitutional amendment has been initiated since the ERA in 1972, and none has been ratified since 1971 (excluding the odd case of the 27th Amendment,which was originally proposed in 1791 as part of the Bill of Rights, failed to be ratified, and was questionably revived two centuries later). And most of the amendments that were ratified in earlier decades were of minor import. The last truly significant amendment was the 19th, which in 1920 extended the vote to all women.
The most important reform would be to allow the states to initiate amendment proposals without having to go through a convention. Article V provides that amendments may be proposed by a convention called by Congress “upon the Application of the Legislatures of two-thirds of the several States.” Such a convention has never occurred, nor is one likely (despite the valiant ongoing efforts of some conservative activists). The fundamental impediment was pointed out by James Madison at the constitutional convention of 1787, when the convention mechanism was added on the second-to-last day in the rush to conclude. Madison noted that Article V does not provide any procedures for such a convention. Consequently, a host of critical issues are left unresolved, such as whether an Article V convention could be limited as to subject, how votes would be counted, how many votes would be required, what would constitute a quorum, who would pay for it, how long it would sit, and so forth.
Yet at the 1787 convention, all agreed that the states should have the same power as Congress to initiate amendments. As Madison wrote in Federalist No. 43, Article V was intended to “equally enable the general and the State governments to originate the amendment of errors, as they may be pointed out by the experience on the one side, or the other.” Eliminating the convention requirement and allowing a small group of states (I have proposed five) to initiate an amendment would empower the states and enable the people to consider many widely supported amendment proposals that are now hopelessly stuck in a dysfunctional Congress. Under this plan, if five states passed an amendment within a period of four months, the other states would have nine years to provide the necessary 29 additional approvals to reach two thirds and make the amendment part of the Constitution.
Since there is agitation for constitutional change across the political spectrum, a temporary left-right alliance is conceivable to enact a content-neutral, purely procedural reform of the amendment process.
Another reform would be to slightly lower the approval thresholds, which, as noted above, are the highest in the world. There is no indication that the Framers wanted to make approval as difficult as it is. Since only 12 states attended the 1787 convention, the difference between two-thirds and three-fourths was very small (just one state, in fact). No one considered what the impact of a three-fourths threshold would be when there were 50 states. Most proposals to reform Article V reduce that requirement to two-thirds. Because of the great disparity in state populations, I have also proposed adding a requirement that the ratifying states must have a majority of the nation’s population.
Of course, such reforms would have to be enacted under the current Article V. But since there is agitation for constitutional change across the political spectrum, a temporary left-right alliance is conceivable to enact a content-neutral, purely procedural reform of the amendment process. All Senate Democrats have endorsed an amendment reversing Citizens United, and all Senate Republicans say they support a balanced-budget amendment. A drive for Article V reform would enable these politicians to show their sincerity in support of their proposals.
Democratic Amendment vs. Judicial Amendment
Objections to judicial amendment have been made since Dred Scott, from progressives protesting the insertion of pro-business doctrines into the Constitution to conservatives questioning the addition of elitist social views. Republican presidents since Richard Nixon have claimed that they were only going to appoint justices who would strictly interpret the Constitution. While this is a worthy sentiment, we must recognize that experience since then shows that we cannot rely on life-tenured, unaccountable judges to refrain from exercising the unlimited power of judicial amendment that the Supreme Court has accrued for itself through its 150-year history of violating Article V. Rather than rely on the self-restraint of fallible mortals, an invigorated, reformed Article V would create a powerful new constitutional check on the Supreme Court (and the rest of a central government that has exceeded its original constitutional limits in all its branches).
An invigorated Article V should be central to the program of those who respect the Constitution. Professor Randy Barnett summarized originalism as the view that “the meaning of the Constitution must remain the same until it’s properly changed.” (My own preferred summary is that “the Constitution says what it means and means what it says,” but we’ll go with the professor for now.) Originalism arose as a response to the unrestrained judicial amendment of the Warren and Burger courts, so it is not surprising that it has emphasized the first part of the summary — the meaning of the Constitution must remain the same.
However, those who respect the Constitution need to recognize that its vitality depends on its ability to respond to changing circumstances. If we are to decisively rebut the arguments for judicial amendment, we need to attend to the second part of Professor Barnett’s summary — proper change. Article V is no longer fulfilling its function of providing a democratic, deliberative process of constitutional change. This has permitted the Supreme Court to usurp the rights of the people and their elected legislatures and has left us with a Constitution riddled with imprecise, complicated judicial amendments. A reformed, reinvigorated Article V will be the definitive and democratic response to the Supreme Court’s usurpation of that article’s vital functions and confirm the right of the American people to determine the meaning of their Constitution.