Bench Memos

Law & the Courts

Some Originalist Underpinnings for a New Constitutional-Amendment Proposal

(Dreamstime)

 

“To be appointed to a place may be a matter of indifference. To be incapable of being appointed, is a circumstance grating, and mortifying.”

— Foreign-Born American Founder James Wilson, August 9, 1787

Proposed Amendment

That Article II, section one, clause five, be amended so as to read:

‘No person except a Citizen of the United States shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a resident within the United States.’

OR

‘No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a resident within the United States.’

***

One way to make constitutional originalism more attractive for present-day interpreters of the Constitution is to enact constitutional amendments. Experience with the amendment process schools the present generation about what it takes to get something in the Constitution. It increases the respect people hold for the achievement of ratification. And it educates people to understand the Constitution as a human-made legal instrument. Actually enacting amendments makes interpreters less likely to treat the Constitution as a font of vague principles for future generations to reshape over time as judges and other officials see fit.

Reasons like these are why Justice Scalia was a proponent of making it easier to amend the Constitution. And they continue to be good reasons for originalists now to be amendment-friendly.

Constitutional originalists should also welcome successful constitutional amendments because they legitimate the formal mode of amendment as the way that constitutional change ought to be accomplished. The alternative of informal constitutional change through judicial invention or make-believe is the antithesis of originalism-based adjudication. As the title of a recent Law & Liberty essay developing a point previously made by Alexis de Tocqueville put it, we should think of “Constitutional Amendment as a Path to Avoiding Robed Masters.”

But where to start? At some point, we obviously need to think about amending Article V itself. The current thresholds for an amendment are two-thirds of both houses of Congress and three-fourths of states. Maybe these fractions should be more like three-fifths of both houses of Congress and two-thirds of states. Or maybe there should be some mechanism with total national population as a denominator instead. There are merits and demerits to a range of approaches, and no need to get into them here.

Whatever the optimal approach to loosening up the requirements might be, that approach itself would need to make it through the current Article V process. (I’m here putting aside as insufficiently originalist various legal theories that have been advanced for circumventing Article V’s requirements.) Even if we eventually must debate concrete alternatives down the road, then, that is probably not the most productive place to start.

Another major barrier to ratification of constitutional amendments is our “amendment culture” itself. This is what political scientists Tom Ginsburg and James Melton have described as “the set of shared attitudes about the desirability of amendment, independent of the substantive issue under consideration and the degree of pressure for change.” This set of attitudes provides a “baseline level of resistance to formal constitutional change,” such that the difficulty of amendment can be greater or lesser even under identical institutional arrangements. And our amendment culture in the United States at present makes amendment difficult by layering constitutional veneration over a general status quo bias.

When we look beyond our amendment culture to our constitutional culture more generally, we see pervasive distrust and fear. These attitudes are manifest in the concerns that people of a range of political persuasions have expressed on one occasion or another about what “they, the People” on “the other side” will do if we start tinkering with the Constitution.

Maybe a good way to get a start on amending the Constitution’s amendment mechanism is to use it successfully to get something else done first. Any amendment that achieves ratification has to have widespread support, after all. Maybe people will be more willing to trust their fellow citizens as agents in an amendment process if they have some positive experience of having gone through that process once. This line of thought is one of the converging vectors that has led me to advocate an amendment to repeal the “natural born Citizen” eligibility requirement for president in Article II.

A commitment to constitutional originalism has also informed my choice of a particular proposal for amendment. If ratified, the “Irish Born” One American Citizenship Amendment would be the first constitutional amendment to take the form that James Madison and others originally intended. It would alter the original constitutional text rather than just tack on additional language at the end.

The first ten amendments that we have come to call the “Bill of Rights” have a lot going for them. But the legal form that the first generation of ratifiers settled on using set a very bad precedent. The meaning of the amendments would have been clearer, and the wording less roundabout, if the amendments had simply been put where they belonged in the text they were amending. The First Amendment, for example, would not have had to say “Congress shall make no law” if its prohibitions had been inserted among other limits on Congress’s powers in Article I, Section 9.

Later generations have invariably followed. But we can and should do better on form as well as substance. We should show a little gumption in self-government and change the original text itself. The unamended Constitution was not perfect. Time to admit the obvious and take out words that probably should not have been there to begin with.

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