Sunday, July 16, 2017

Just "Amend the Constitution"

A lame response. 

I've been reading the comments here on Professors Randy Barnett and Bruce Ledewitz's debate on originalism. One mantra the right of center originalists there seem to repeat is, (me paraphrasing) "if you don't like the Constitution the way it was originally understood, simply amend it."

Yeah, easier said than done. And do we really want or need more amendments?

Why do I think it's a lame response? Put the shoe on the other foot. Don't forget, if we don't like the way the Supreme Court interprets the Constitution, we can always amend the Constitution to overrule said understanding. Similarly, we can amend federal statutory law when the Supreme Court interprets a federal statute in a way in which we disagree. And though it's not necessarily an easy thing to amend a federal statute, it's much, much easier to do that than to amend the US Constitution.

The US Constitution has been amended only 27 times!

Roe v. Wade and Obergefell v. Hodges are two cases with which socially conservative originalists strongly disagree. Well, just amend the Constitution. It was tried. How did that human life amendment or marriage amendment go down?

There is actually a much better answer. We don't see it because most socially conservative originalists don't seem interested in defending arguably the "rightest" original understanding of the 14th Amendment. And I understand why, this understanding holds Brown v. Board of Education to be wrongly decided.

And there an unwritten rule that any theory of constitutional interpretation that holds Brown to be wrong is not viable.

And by the way, this is not the kind of originalism that I defend. I don't trust majorities on matters of fundamental rights. I strongly value individual rights that are antecedent to majority rule and sympathize when majorities who might impinge on such are so frustrated.

So much of our constitutional law involves the 14th Amendment and the federal Constitution constraining state and local governments on matters of civil rights that relate to race, gender, religion and a bunch of other things thing.

The "rightest" original expectation of how the 14th Amendment's text was meant to apply is as follows: The Equal Protection and Due Process Clauses are entirely procedural. They were meant to grant no substantive rights whatsoever. The Privileges or Immunities Clause was meant to grant substantive rights. The Supreme Court's Slaughterhouse Cases were wrong. But it was Congress' role to define and guarantee those rights that constitute Privileges or Immunities.

Brown was wrong NOT because the framers of the 14th Amendment didn't think it would potentially outlaw government mandated segregation. But rather because it's Congress' role, not the Courts to outlaw such by means of statutory law which the 14th Amendment was meant to constitutionalize. Otherwise for Congress to attempt to do such would be an unconstitutional exercise of its powers pursuant to the doctrine of limited, enumerated powers.

So if we don't like the way the Supreme Court understands matters of fundamental rights, the proper response is indeed, "amend." But it's not the Constitution that needs to be amended. Rather it's extant federal statutory law relating to matters of fundamental rights that Congress has power over pursuant to the Privileges or Immunities Clause of the 14th Amendment. Much easier than amending the US Constitution.

Again, this isn't a constitutional world in which I endorse; but it's a better use of the "amend" response than telling your opponent to simply amend the US Constitution if you don't like the way the courts deal with matters of fundamental rights.


Art Deco said...

Don't forget, if we don't like the way the Supreme Court interprets the Constitution, we can always amend the Constitution to overrule said understanding.

Roe and Obergefell are not 'interpretations' of the Constitution and no one with an ounce of integrity would suggest they were.

The Constitution itself is a deficient document because of its inflexibility and cumbersome amendment process. The social adjustment has consisted of cock-and-bull judicial opinions, which reflect the fashions of the bar, not public opinion.

Brian Tubbs said...

That amending the Constitution is extremely difficult is not, in and of itself, an argument against originalism.

Tom Van Dyke said...

Art Deco said...
Don't forget, if we don't like the way the Supreme Court interprets the Constitution, we can always amend the Constitution to overrule said understanding.

Roe and Obergefell are not 'interpretations' of the Constitution and no one with an ounce of integrity would suggest they were.

The Constitution itself is a deficient document because of its inflexibility and cumbersome amendment process

I see other countries [and here in California] amending their constitutions with such frequency that it's no more "cumbersome" than writing routing legislation. Jefferson spoke of binding capricious with "the chains of the Constitution."

I'm afraid they're not "chains" at all when they can be reforged with little or no trouble.

As for the current regime of philosopher-kings in black robes, there's the weak link in the chains.

Congress, the Court, and the Constitution: Has Congress Abdicated Its Constitutional Responsibilities?

Art Deco said...

California suffers from initiative madness, in part because commercial signature gathering is legal in California and in part because the political culture and constitutional process promote the resolution of substantive policy questions by initiative.

Ideally, popular ballots would consist of recalls, retention-in-office referenda, bond issues, constitutional amendments, and charter amendments. Local charters would be composed of templates delineated in appendices to the constitution, with blanks filled in by periodic local option and local option by petition. (Blanks would generally be on the order of which office to render elective, with the default setting being the council and perhaps the mayor).

Constitutional amendments might be proposed by a periodic (say, bienniel) convocation of local councillors (proceeding by weighted voting). Each county council would be assigned a population of electoral votes equal to the sum of the citizen population of the county and the citizen population of the unincorporated zones therein. Each municipal council would be assigned a quantum equal to the citizen population therein. San Francisco and the like would be assigned a quantum equal to double the citizen population, as the functions of county and municipal government are combined in one council. The electoral votes would then be divided equally between the councillors (if each has an equal weight on their home council) or prorated between them (if they are elected from fixed-boundary constituencies and practice weighted voting at home). The total number of electoral votes will equal double the state's citizen population. A majority of extant electoral votes (not a majority of a quorum) would be necessary to propose an amendment. Once proposed, it would be tabled for a term of years depending on the ratio of electoral votes endorsing to those not endorsing (i.e. opponents and abstainers). If the ratio be 1-to-1, the amendment would be tabled for 8 years and then a referendum held at the next available date (positing that referenda be held each year in May, let's say), so, 8-9 years later. Were the ratio 2-1, you'd table for 4 years. Were the ratio 5-3, you'd table for 4.8 years, etc.

Short of a constitutional amendment, such a convocation could have a franchise to disgrace a judicial opinion, prohibiting its citation in other opinions and in legal briefs. Ideally, it would have a franchise to exile an errant judge, stripping him of his law license and compelling him to leave California under pain of imprisonment.

Art Deco said...

One might also posit that a state constitution delineating the legislative power of conciliar bodies on each level define three sorts of powers: procedural (i.e. conduits to performing other functions e.g. hiring civil servants, purchasing land, selling land, etc) which would be stated precisely and be about the same for all such bodies; foundational, which would consist of some precise (but, perhaps, perhaps, spare) delegations to the superordinate levels; and supplementary, which would be unspecified in the constitution but delineated in a statute of common government for each superordinate authority. The statute could be enacted and maintained by the convocation of local councillors, so the outer boundary of the state legislature's powers would be subject to the discretion of local councillors and the outer boundary of county and metropolitan authorities subject to the discretion of municipal councillors. The default locus of legislative power would be in municipal councils (bar what's denied legislative bodies by a bill of rights). The convocation might elect a secretariat composed of retired local councillors serving one-term-per-lifetime whose functions would include the power to toll legislation and judicial opinions pending the next convocation and the power to set up trusteeships to liquidate state agencies whose franchise has been revoked.

Other things you might do would be to reconstitute the state as a confederation of four components with adjustable boundaries (Greater Los Angeles, Greater San Francisco - San Jose - Oakland, North, and South) with each having a state government of its own and just having some spare joint or reciprocal institutions. Mandatory rotation-in-office (no more than eight years in any bloc of 12 in a given office), a reduction in the number of elected offices (e.g. a default setting of just electing one general executive), an end to straightforward bicameralism (having the upper chamber elected by the lower chamber and grating it limited functions), setting the size of legislative bodies according to a function of the citizen population of a territory, and revamping your electoral calendar (having referenda and court system elections in May, having all non-judicial offices elected for 4 year terms, and having all specialized offices outside the judiciary elected the 4 year of a quadrennial cycle).

And, of course, prohibit commercial signature gathering. I think if you adopted these measures, you might reduce political frustration and the propensity of people to seek constitutional amendments to ban taxes on Vlasic pickles.

Just a thought.