Bench Memos

Law & the Courts

“A Big Fix: Should We Amend Our Constitution?”

I have the pleasure of participating today (in just a few hours) in a conference at Stanford Law School, sponsored by the Stanford Constitutional Law Center – headed by my old friend, the illustrious Professor and former Tenth Circuit Court of Appeals Judge Michael W. McConnell. 

The conference’s theme is “A Big Fix: Should We Amend Our Constitution?”  Conference attendees were invited to propose big-deal proposed amendments to the U.S. Constitution.  Change something in a major way!  Correct some serious misfire in the U.S. Constitution!  Correct a long-simmering problem!  Repair something you think the framers got badly wrong!  Go wild!  Indulge your fantasies!  Fix the Constitution!

The conference features a great cast of characters, including some of the leading constitutional thinkers of the nation’s law schools: Mary Anne Case, Jane Schacter, Randy Barnett, Laura Donohue, Sandy Levinson, Amy Wax, Michael Greve, Jamal Greene, Richard Pildes, Michael Ramsey, Sai Prakash, Elizabeth Foley, Russ Feingold, George Thomas, Will Howell, Zephyr Teachout, Roman Buhler, Ruth Wedgwood, along with fellows of the Stanford Constitutional Law Center and several Stanford Law School students. 

We’ll see if we change the world over the weekend.  Who knows?  Maybe we’ll convene ourselves into an unauthorized constitutional convention and issue some proposals. 

My own cheeky contribution is a proposed constitutional amendment abolishing judicial activism by prescribing rules-of-construction governing the interpretation and application of the Constitution (original-public-meaning textualism, of course); abrogating stare decisis by specifying that prior judicial decisions contrary to the prescribed interpretive rules would not have any prospective force (even as to lower court judges!); and confirming that, even though the amendment would not reopen any final judicial judgments or dictate specific outcomes in specific cases, other branches and institutions of government are (of course) not bound in their actions by judicial decisions departing from such principles of proper constitutional interpretation. 

My provocative claim is that these are all correct understandings of how the Constitution is to be construed and applied already.  But it doesn’t hurt – and could help a great deal – to embody them explicitly in the Constitution. 

I hope to report next week on how the conference goes – once the Fix is in. 

Michael Stokes Paulsen — Mr. Paulsen is a professor of law and distinguished university chairman at the University of St. Thomas, in Minneapolis.

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