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Does Living Constitutionalism Lead to "Dying Constitutionalism"?

Living constitutionalists argue that their methodology allows us to improve constitutional law over time. But what if it actually makes it worse? Legal scholar Ernest Young raises that very question in an important new article.

One of the main potential advantages of living constitutionalism is the possibility that it can facilitate societal progress. However enlightened the generation that drafted and ratified various parts of the Constitution may have been, there is much we know that they did not. In theory, we could just use the constitutional amendment process to update the document in light of new insights. But such formal updating is extremely difficult, because the US Constitution is perhaps the hardest to amend in the world. Thus, living-constitutionalist judging may be necessary to ensure that constitutional law keeps up with new knowledge and increasing enlightenment. By that means, we get a gradually improving constitutional law without (at least in most cases) having to go through the formal amendment process.

But an insightful new article by Duke law professor Ernest Young casts doubt on the optimistic assumptions underlying this view. What if instead of improving constitutional doctrine over time, living constitutionalism actually makes it worse? What if later generations are less enlightened than the framers, rather than more so? He argues that this is exactly what happened during the first several decades of the era of Jim Crow segregation, after Reconstruction. Here is the abstract to his article on "Dying Constitutionalism":

The notion of a "living Constitution" often rests on an implicit assumption that important constitutional values will "grow" in such a way as to make the Constitution more attractive over time. But there are no guarantees: What can grow can also wither and die. This essay, presented as the 2018 Robert F. Boden Lecture at Marquette University Law School, marks the sesquicentennial of the Fourteenth Amendment's ratification as a powerful charter of liberty and equality for black Americans. But for much of its early history, the Fourteenth Amendment's meaning moved in reverse, overwhelmed by the end of Reconstruction, the gradual entrenchment of Jim Crow in the South, and the consolidation of racial discrimination in the North. All of the recognized modalities of living constitutionalism—evolving public mores, social movements, electoral outcomes and landmark legislation, and common law development—contributed to constitutional changes that left the Fourteenth Amendment meaning less in the late 19th and early 20th centuries than it did at its ratification. The Amendment's early history is thus an instance of dying—not living— constitutionalism. It is far from clear, however, that alternative constitutional approaches—such as originalism—could have prevented this constitutional regression. This essay explores how the Fourteenth Amendment got so off track and whether the theory of living constitutionalism can be modified to help it hang on to the Constitution's core commitments in the face of social change. Ultimately, the essay suggests that constitutional methodology may be less important than constitutional culture in this regard, and that the culture of living constitutionalism ought to emphasize caution over optimism about the inevitability of moral progress. The Fourteenth Amendment's "lost years" offer precisely the sense of tragedy that might inspire that cultural shift.

The key point is not just that constitutional law got worse, rather than better, but that what are today standard living constitution arguments helped make it so. For example, judges and others argued that segregation laws should be upheld because they were consistent with evolving societial morality, the demands of what we would today call influential "popular constitutionalist" movements, and common law doctrinal reasoning.

Segregation law is not the only field where constitutional doctrine deteriorated during post-Reconstruction era. A similar pattern occurred in the area of immigration law, where a strictly limited original understanding of federal power to restrict migration gave way to the "plenary power" doctrine, which upheld even immigration legislation blatantly motivated by racial, ethnic, and religious prejudice. Some key elements of that transformation survive even to this day, as witness the recent travel ban decision, in which the Supreme Court upheld blatant discrimination on the basis of religion of a kind it would not tolerate anywhere else. Here too, constitutional deterioration was facilitated, in large part, by what we would today consider "living constitution" modes of legal interpretation. For example, the 1889 Chinese Exclusion Cases in which the justices first ruled that the federal government has a general power to restrict immigration cited the "necessity" of combating supposed threats to sovereignty, such as "the presence of foreigners of a different race in this country, who will not assimilate with us," and noted that "the differences of race" were a major factor in the threat supposedly posed by Chinese immigrants excluded by the law it upheld.

One can surely find other examples of constitutional deterioration in American history, as well. The Jim Crow era is the most notorious example, but likely not the only one.

As Young emphasizes in the article, the danger of "dying constitutionalism" does not by itself prove that we should reject living constitutionalism in favor of originalism. He remains a living constitutionalist himself. But he does urge his fellow living constitutionalists to recognize that "there is no necessary connection between living constitutionalism and moral progress" and that "we will get better results out of living constitutionalism if we spend more time worrying about the downside risks."

Living constitutionalists could try to build safeguards against such deterioration in their theories. For example, they could emphasize (as some versions of living constitutionalism already do) the importance of substantive, not just procedural, constitutional values. If, for example, the key point of the Fourteenth Amendment is to restrict racial and ethnic discrimination by the government, a living constitutionalist could allow changing interpretations which help achieve that purpose, but reject those that undermine it (even if, perhaps, they are backed by popular movements, common law reasoning, and other living constitution modalities). But, at the very least, Young is right to suggest that living constitutionalists need to devote more attention to the dangers of deterioration than most currently do.

In the last part of his article, Young briefly argues that his analysis does not justify a preference for originalism over living constitutionalism, because the former cannot protect against deterioration any better than the latter. One reason is that the original meaning of some key parts of the constitutional text are broad and "open-ended," and therefore susceptible to judicial undermining no less than living constitutionalism is. Perhaps that is indeed true in many cases. But, of course, many important parts of the Constitution are actually fairly precise, or at least have precise core meanings, despite some fuzziness at the periphery. Moreover, even if the text is broad, other evidence of original meaning can help fill in the details. While it may be difficult to discern the full extent to which the original meaning of the Fourteenth Amendment bans racial discrimination, it clearly does so in the sort of case at issue in Plessy v. Ferguson (1896), which addresssed discrimination with respect to freedom of contract, one of the core "civil rights" that the framers of the amendment sought to protect.

Young also points out that neither originalist nor living constitutionalist judges will necessarily be able to withstand the pressures of public and elite opinion, especially in cases where doctrinal arguments are fairly closely balanced. That is surely true. Constitutional methodology is far from the only influence on judicial decision-making, and often not the most powerful. But, at the margin, a methodology that emphasizes the importance of standing firm against societal pressure is likely to offer more protection against deterioration than one that often provides justifications for accommodating it.

The risk of "dying constitutionalism" cannot definitively settle the longstanding conflict over constitutional methodology. Even if degeneration over time is a serious danger of living constitutionalism, it could be that the perils of originalism are even worse. But, at the margin, the the threat of "dying constitutionalism" does strengthen what I call the "instrumental" justification for originalism, which holds that originalism is preferable to the alternatives because it leads to better outcomes, rather than because it is intrinisically valuable.

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  • bernard11||

    While it may be difficult to discern the full extent to which the original meaning of the Fourteenth Amendment bans racial discrimination, it clearly does so in the sort of case at issue in Plessy v. Ferguson (1896),

    I'm not sure I believe this. Suppose we went back in time and took a survey to determine "original public meaning." One of the questions is, "May a state pass a law requiring separate railway cars for black and white passengers?" What would the results be, do you think?

    (Note that we have the results of asking such a question, albeit with a very small sample, and the answer was overwhelmingly, "Yes.")

  • Remember to keep it all polit||

    I take it as just a continuation of the Slaughterhouse refutation of everything that went into the 14th amendment ratification. AIUI, everyone, pro and con, thought the 14th amendment extended all privileges and immunities to all citizens; but 8 (?) years later, the Supremes said no, only the few federal rights like navigable waters or some such nonsense. And nobody cared, because they had moved on.

    Or something like that. IANACL or even AL.

  • Mannix||

    Extended the P&I's to all US citizens, not citizens of a state. Statements before and after the passage of the 14A by its primary author fully supported the holding in Slaughterhouse.

  • Eddy||

    I think the original post invoked the Civil Rights Act of 1866 - the 14th Amendment at least served to remove doubts about that Act's constitutionality - which said that native born "citizens, of every race and color...shall have the same right, in every State and Territory in the United States, to make and enforce contracts...as is enjoyed by white citizens" - so if a white citizen can contract with a railroad to ride in a given car, a nonwhite citizen can also enter into such a contract to "the same" extent as whites.

  • Eddy||

    To make "the same" mean "close enough for government work" is an example of sociological jurisprudence - which ironically is the same accusation made against Brown v. Board.

  • bernard11||

    OK, but I don't think a ticket is a contract to sit in a certain car. It's a contract to ride in a certain class of car, but not a specific car. A first-class ticket, say, entitles me to specified comforts, but not to ride in car five if the railroad wants me to ride in car six, also a first-class car.

    That's why "equal" mattered.

  • Eddy||

    That ought to be between the company and the passenger - companies didn't like being burdened with these Jim Crow laws.

    If the company and a white citizen can make a contract saying "bearer of ticket can ride in car X," then if nonwhite citizens have "the same" right, then they too should be able to make such a contract.

  • bernard11||

    That ought to be between the company and the passenger

    Sure, Eddy.

    I was just describing what I think the normal arrangement is and probably was.

    I know the streetcar company didn't like the law. Suppose they tried to circumvent it by changing the terms of the ticket to specify a car, and then arranged a challenge to the LA law on that basis. Do you think SCOTUS would have gone along? I doubt it, myself.

  • Eddy||

    Obviously it didn't - because, as I believe, they were engaged in sociological jurisprudence.

  • rsteinmetz||

    The railroads didn't like the law because it cost them money. They had to have additional cars to carry black passengers. The East Louisiana Railroad cooperated with Plessey and the group he belonged to to set up a test case..

  • bernard11||

    True.

  • Stephen Lathrop||

    Eddy, about, "companies didn't like being burdened with these Jim Crow laws." I could suggest that you have set yourself a difficult burden of proof, at least to establish that as a general matter. I also think it's likely that you are relying on economic ideology to deduce what you offer as fact. If that is what you are doing, it's foolish. Even in physics, axioms can't be used to deduce facts, still less in history.

    But I really don't need those suggestions, because I grew to adulthood in the South, with my entire youthful experience directly affected first by Jim Crow, full strength, and then progressively by the South's struggle to retain Jim Crow. That's enough first-hand experience to tell you that whether or not you suppose "companies didn't like being burdened with these Jim Crow laws," that was no practical part of what happened. Companies in the South, in the overwhelming majority, behaved publicly—and also as a matter of internal policy—as if they supported Jim Crow. You will also search in vain for significant evidence that southern companies attempted to influence government to abandon Jim Crow laws.

    At no time during the Jim Crow era was there any sense that whatever the persecutions experienced by blacks in the public square, or in the social realm generally, they could count for relief on more-enlightened institutions ruled by economic self-interest. That did not happen.

  • bernard11||

    Stephen,

    I agree with you, having also grown up in the South and lived there for a big chunk of my adult life.

    I think what he was referring to was the specific case of some streetcar companies around the time of the Plessy decision. In libertarian world the fact that these particular companies, at that particular time, didn't like the laws proves that all businesses always hated them.

    That's not true, as you point out, which is easy to see if you look at how they behaved. Among other things, most businesses had racist employment practices, even though these were not required by law.

  • Brett Bellmore||

    In a libertarian world, the fact that some of the companies didn't like Jim Crow would have given them a competitive advantage over the companies that did like it. Given the high percentage of the population the latter would have lost as customers. That's why Jim Crow needed legal and extra-legal coercive backup, it wasn't stable otherwise.

  • Eddy||

    ...and there were plenty of companies which made a bid for white customers by catering to the customers' racist preferences, which the company owners could well have shared.

    And companies which didn't like the situation would have had to go along with Jim Crow anyway, for fear of customer backlash and legal penalties - penalties which were perfectly constitutional according to the Supreme Court (whose decisions, after all, are "the law of the land" /sarc).

  • bernard11||

    In a libertarian world, the fact that some of the companies didn't like Jim Crow would have given them a competitive advantage over the companies that did like it.

    This is a fairy tale.

    First, it completely ignores the employment discrimination issue I raised. Why didn't companies seek a competitive advantage by being less discriminatory in hiring and promotion?

    Simple. They would have made things worse, not better. Other workers would have been uncooperative, and many would have resented having a black supervisor, say, to the extent that output would have suffered.

    It would have been the same in many other cases. Absent Jim Crow laws restaurants and hotels would have lost customers not by refusing service to blacks, but by serving them.

    Given the high percentage of the population the latter would have lost as customers. That's why Jim Crow needed legal and extra-legal coercive backup, it wasn't stable otherwise.

    You have this backwards. Those that served blacks would have lost a lot of customers, not the other way around.

    continued..

  • bernard11||

    Continuation...

    Here is the thing you refuse to understand: the white population of the Jim Crow South was intensely racist. Even many whites who thought blacks were mistreated still didn't want to eat in the same restaurant, or sleep in the same hotel, as blacks.The economically rational practice was to refuse blacks service, Jim Crow laws or not.

    An interesting example is the first lunch counter sit-in in Greensboro. Woolworth's could have served the students. There was no law against it. Why didn't they?

    it wasn't stable otherwise.

    Jim Crow was perfectly stable so long as the society was racist. That's why they had the damn laws to begin with. It unraveled under legal and legislative pressure, and as attitudes changed. In its native habitat Jim Crow would have lasted forever.

    As an aside, this is why I dislike ideology. The ideologue always insists, as Brett does here, that the ideology is perfect - that it fixes everything. There is never talk of tradeoffs, no admission that there might be some problems, etc. Always there is the theoretician, ready to ignore all evidence in explaining the wonders of his ideology.

  • NToJ||

    "The economically rational practice was to refuse blacks service, Jim Crow laws or not."

    While I don't doubt this was true occasionally, boycotts (by blacks) often worked.

  • Stephen Lathrop||

    NToJ, I know of a terrific example of a boycott by whites. Closed down a big amusement park which had been wildly successful for years. My boyhood home was within earshot of the folks screaming their heads off on the roller coaster.

    It yielded to agitation and desegregated, and got forced right out of business by a de-facto white boycott. Guess the libertarian economics didn't apply that time.

  • bernard11||

    While I don't doubt this was true occasionally, boycotts (by blacks) often worked.

    Sometimes. But that really just reinforces the point. Under what conditions does a boycott work?

    You can't effectively boycott someone who isn't serving you to begin with. What does the hotel care if blacks boycott, if the hotel doesn't allow black guests to begin with, whether as matter of law or preference?

    So the business being boycotted can hire or serve blacks, but in a discriminatory way. And, despite the claims about how market forces would end that, it took organized boycotts to get them to change. Market forces were not enough.

    I can't say it often enough. In a racist society markets reinforce discrimination. They do not reduce it.

    Suppose you were charged with a serious crime in Alabama in the 1950's. Would you ever hire a black lawyer, no matter how brilliant and capable you thought he was, to defend you, in front of a jury of probable racists and a certainly racist judge, who might soon be up for re-election by white racist voters?

  • Eddy||

    "I think what he was referring to was the specific case of some streetcar companies around the time of the Plessy decision."

    Yes.

    "In libertarian world" (etc.)

    What does what I said have to do what the libertarians in your head believe?

  • Eddy||

    In the case of the Louisiana law, "The railroads, though dreading public opinion, professed distaste for the costly segregation law and proved surprisingly co-operative" with the legal challengers to the law. Otto H. Olsen, *Carbetbagger's Crusade: The Life of Albion Winegar Tourgée,* Baltimore, Johns Hopkins Press, 1965, p. 327.

  • bernard11||

    It's not the libertarian in my head, Eddy.

    It's what lots of libertarians have written, only slightly exaggerated. See Brett's comments for example.

  • Eddy||

    Your remark was: "In libertarian world the fact that these particular companies, at that particular time, didn't like the laws proves that all businesses always hated them."

    I certainly shouldn't have tried to use shorthand expressions to refer to the RR companies' known opposition to the Louisiana segregation law. I should have expected that "living constitutionalists" would have given a creative and evolving interpretation to my remarks.

    To those particular railroads, no, they didn't want to be forced to have separate Jim Crow cars. Not because they were potential National Brotherhood Week nominees, but because they didn't want the extra cost. Just another populist railroad-regulation law, from their point of view.

  • bernard11||

    Eddy,

    I do not disagree that the companies opposed the LA law, for the reason you give.

    My point was that this is often over-generalized to argue, as Brett does, for example, that without those laws there would have been no segregation and racial harmony would have prevailed.

    If I came across snarky, it's because I meant to. I think that generalization is foolish and unsupported by the evidence, but I did not intend to aim my snark at you. I suppose that wasn't clear, so I apologize.

  • Eddy||

    No worries, I know I need to phrase my remarks with great particularity, and not be vague enough to open myself up to various interpretive schools.

    But again, I was talking about the specific situation where Louisiana and other legislatures thought it necessary to force railroad companies to act inefficiently and segregate their cars - this in the context of exploring freedom of contract as the basis on which an originalist court could have decided Plessy v. Ferguson contrary to how it actually was decided.

  • Mannix||

    Yes, the Civil Rights Act of 1866 and the Fourteenth's first section was one and the same as far as operation was concerned because the 1866 act was not considered legal unless the constitution was amended.

  • jph12||

    "(Note that we have the results of asking such a question, albeit with a very small sample, and the answer was overwhelmingly, "Yes.")"

    No we don't. Plessy v. Ferguson was around a quarter-century after the passage of the Fourteenth Amendment.

  • bernard11||

    OK.

    But how do you think it would have come out 25 years earlier?

  • jph12||

    How do I think what would have come out 25 years earlier? Plessy v. Ferguson? I don't think it would have happened 25 years earlier because the Louisiana legislature that passed the Slaughterhouse Acts would never have required the segregated rail cars. And for all its ill effects, the Slaughterhouse decision was supposed to support reconstruction, not eviscerate it. Good intentions and all that.

    Plus, there's what brec says.

  • NToJ||

    "...because the Louisiana legislature that passed the Slaughterhouse Acts would never have required the segregated rail cars."

    Right, because they had to wait until federal troops were withdrawn in 1877, to enact the laws they always intended.

  • jph12||

    No, because the withdrawal of federal troops in 1877 led to changes in the composition of the Louisiana legislature.

  • NToJ||

    The Democrats throughout the south were already in the process of disrupting Republican rule through terrorism, prior to 1877. That didn't happen in Louisiana, Florida, or South Carolina because those were the last places federal troops were stationed at the end of Reconstruction. Democrats had already won the state legislatures in the non-occupied places. The southerners never intended to honor the Civil War Amendments.

  • jph12||

    I'm not sure why you continue to agree with me so vociferously.

  • brec||

    Suppose we went back in time and took a survey to determine "original public meaning." One of the questions is, "May a state pass a law requiring separate railway cars for black and white passengers?"

    This conflates different senses of "meaning." (Yes, this means[!] that we have to talk about the meaning of "meaning." My apologies.] "Original public meaning" is a variety of textualism, which says that the meaning of the text -- of the words -- must be determined as a starting point in interpreting a constitutional provision. Questions such as "May a state pass a law requiring ... ?" are, on the other hand, questions about the application of a provision. OPM originalists believe that applications can change over time with changing beliefs as to relevant facts. Ruling in a case requires application of the law to the facts of the case.

    To ask of a constitutional provision or a law, "Does it mean that [some specific application] is [allowed or prohibited]?" is a question about application, not about the textual meaning. Applications may change in ways that would have surprised the original framers of the text.

  • swood1000||

    Questions such as "May a state pass a law requiring ... ?" are, on the other hand, questions about the application of a provision. OPM originalists believe that applications can change over time with changing beliefs as to relevant facts. … Applications may change in ways that would have surprised the original framers of the text.

    Suppose the framers and ratifiers understood and used the word 'liberty' in the following sense: "the personal liberty of individuals, consisting in the power of locomotion, of changing situations or moving one's person to whatsoever place one's own inclination may direct, without imprisonment, or restraint." Could the "OPM originalist" you referred to above legitimately apply that word at some later date to mean the liberty to enter into a same-sex marriage, on the ground that this is an application, and applications may change in ways that would have surprised the original framers of the text?

  • brec||

    Given the hypothetical limited meaning of "liberty": I don't think so.

    An example of what I, um, meant: 1873: The Supreme Court decided that the 14th Amendment's Privileges or Immunities clause* did not give women the right to practice law, and it was OK for Illinois to bar women from such practice. That decision would be different today, but not because the meaning of the text has changed.

    *"No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States ... ."

  • bernard11||

    The Supreme Court decided that the 14th Amendment's Privileges or Immunities clause* did not give women the right to practice law, and it was OK for Illinois to bar women from such practice. That decision would be different today, but not because the meaning of the text has changed.

    Well, then. What changed?

  • swood1000||

    That decision would be different today, but not because the meaning of the text has changed.

    I ask the same question as bernard11:

    Well, then. What changed?

    Are you saying that the original understanding of the ratifiers was that the judiciary would have the authority to revise the list of privileges and immunities that would be constitutionally protected, and that the list at that time would not be definitive?

  • brec||

    What changed was the view, primarily of men, of women and their characteristics and capabilities. So if "the list" of privileges includes something like "the privilege of women to be attorneys," then yes, the list changed. The meaning of "privileges or immunities" ["or" in the 14th; "and" in Article IV] didn't change; the meaning is not a list.

  • swood1000||

    So you are saying that those who drafted and ratified the 14th amendment intended to cede to the judiciary the authority to decree what privileges and immunities would be constitutionally protected, and that the judiciary could just decide on whatever basis they preferred what these would be? If so, then the judiciary can not only add but subtract from the list, right? In other words, the drafters and ratifiers were not insisting on any specific privileges but only that there be such a category, leaving the contents up to the judiciary?

  • brec||

    There can be no fixed list of rights (privileges or immunities). Would the right to scratch your left elbow at will be on such a list?

    But what is a right is not arbitrary ("whatever basis they preferred"); that must be informed by a conceptual understanding of what rights properly are -- "properly" because we're talking about a normative concept. E.g., I'm fond of the idea that the *real* preamble to the Constitution, in the sense of being a necessary ground for its interpretation and application, is the Declaration of Independence.

  • swood1000||

    There can be no fixed list of rights (privileges or immunities).

    John A. Bingham, draftsman of the 14th Amendment, stated that he had drawn the "privileges or immunities" clause from the Civil Rights Act of 1866, which said

    That there shall be no discrimination in civil rights or immunities . . . on account of race . . . but the inhabitants of every race . . . shall have the same right to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, and shall be subject to like punishment . . . and no other.

    Why do you insist that there can be no such fixed list? Was the Civil Rights Act also necessarily open-ended, and definable by the judiciary?

    (continued)

  • swood1000||

    (continued)

    Speaking to "civil rights and immunities," House Chairman Wilson asked,

    What do these terms mean? Do they mean that in all things, civil, social, political, all citizens, without distinction of race or color, shall be equal? By no means can they be so construed . . . Nor do they mean that all citizens shall sit on juries, or that their children shall attend the same schools. These are not civil rights and immunities. Well, what is the meaning? What are civil rights? I understand civil rights to be simply the absolute rights of individuals, such as "The right of personal security, the right of personal liberty, and the right to acquire and enjoy property."

    Why do you insist that the privileges and immunities could only be an open-ended grant of authority to the judiciary to add (or subtract) protected constitutional rights?

  • brec||

    Why do you insist that the privileges and immunities could only be an open-ended grant of authority to the judiciary to add (or subtract) protected constitutional rights?

    I suspect that your "open-ended" is more open-ended than I intend, and overlooks the limiting context that I mentioned in my most recent prior comment. Perhaps my suspicion is unwarranted, and you're not concerned that I might be advocating judicial authority to invent or enforce so-called positive rights (entitlements) rather than negative ones (liberties).

    My assertion that there can be no fixed list of rights should be read in the spirit that motivated the Ninth Amendment. (And by "fixed" I mean "exhaustive," yes?)

  • NToJ||

    This is nonsense. "Does it mean..." is a question about meaning.

  • brec||

    Does that mean you disagree with me?

  • NToJ||

    I can't tell yet. If you're saying that there are applications of existing law to objects that the original ratifiers did not know about, I agree. If you're saying you can preserve original intent by applying the law to things the ratifiers knew about but did not intend the law's application to touch, I don't agree.

  • brec||

    I am talking about "preserving" original textual meaning -- the meaning of the words on the parchment -- not the original intent of the writers.

    "It's raining."
    "Does that mean (imply; that you intend) that I should/must take an umbrella?"
    "No, it just means that it's raining (that drops of water are falling, etc.)."
    --Two different senses of "mean[ing]."

  • NToJ||

    Textualism is just a sub-method for interpreting original intent. There is no meta-theory of interpretation that does not begin with original intent, even if different methods develop.

  • Remember to keep it all polit||

    Interesting -- thanks. I'd never really thought about post-14th changes as an example of a living constitution, but it sure fits the bill.

  • BigChiefWahoo||

    Isn't the basic problem with Living Constitutionalism that it's completely results-oriented and that the 'results' desired by Society change over time, leading to an inconsistent body of law?

  • Stephen Lathrop||

    Wahoo, just looking at your remark in the most general way, if the results desired by Society change over time, what is the virtue of a consistent body of law? Are you suggesting it is a virtue for consistency in the law to hamper Society's ability to effect change? If so, consider whether you are taking a classically conservative view of the politics of the matter, but not one which has much to do with anything inherently related to law.

  • Brett Bellmore||

    But living constitutionalism doesn't empower "society". It empowers the federal government. To be specific, the President, who nominates judges, the Senate, which confirms them, and the judges themselves. (The House is the odd man out.)

    It does nothing to empower states or the citizenry, who lack direct control over who becomes a federal judge, and are deprived by living constitutionalism of their Article V power to refuse to assent to constitutional changes.

    Basically, if I may show my age, living constitutionalism is a penny in the fuse box of constitutional change. It deliberately defeats the capacity of everybody outside the federal government to stop it. And since one of the functions of the Constitution is to limit federal power, it defeats the Constitution, as well.

  • swood1000||

    Are you suggesting it is a virtue for consistency in the law to hamper Society's ability to effect change?

    But there are legitimate and illegitimate ways of effecting change. If we agree to live under a constitution which lays out specific ways of effecting change (through amendment by the people at the ballot box) then is it virtuous to instead effect change through judicial revision of the original meaning, completely ignoring the will of the people? Does it become virtuous if we truly believe that the founders erred in making amendment so difficult?

  • Stephen Lathrop||

    swood, I, do not agree to live "under a constitution." Put that way, it implies a sovereign constitution, to which I am subject. The Constitution is not sovereign. It is a decree of the sovereign People, among whom I number myself. It is my decree, made at my pleasure, to empower and control my government. Because it is my decree, it has no power at all over me. I am not subject to my own decree, only my government is. But because ours is a system of popular sovereignty, which gives a dual character to citizens—collectively they are sovereign; individually they are subjects—I as a subject must obey my government, even though it is not itself sovereign.

    That, in one paragraph, is our somewhat paradoxical, but brilliantly designed, system of government.

    Thus, when you say there are legitimate and illegitimate ways to effect change, I agree only in part. That being the part where we talk about government effecting change. But you don't stop with that. You go on to imply that the Constitution deprives me—a member of a collective sovereignty—of any power to effect change in ways not authorized by the Constitution. That doctrine every sovereign must reject, or cease to be sovereign. Sovereign power is unlimited. The sovereign People remain free, as they were at the founding, to effect change in any way they can manage, bounded and restrained by nothing.

    Reflect on that a bit, before you advocate for a constitutional convention.

  • swood1000||

    You go on to imply that the Constitution deprives me—a member of a collective sovereignty—of any power to effect change in ways not authorized by the Constitution. That doctrine every sovereign must reject, or cease to be sovereign. Sovereign power is unlimited.

    No, I'm saying that once you make an agreement then you have to either abide by the agreement or abrogate it. 'Living constitutionalism' wants it both ways. It wants the stability of reliance on agreements made in the past but it wants those agreements to have a different meaning, in accord with what those today wish had been agreed to in the past. That's what I mean by an illegitimate way to effect change: an attempt to surreptitiously change the meaning of parts of the prior agreement in order to avoid the uncertain consequences of upsetting the whole apple cart. Just make your proposals for change out in the open and see if you can get sufficient support for them.

    Everybody has to agree that reinterpretation-by-judiciary can be used by all parties to effect change without having to garner popular support, but once that approach is accepted there is nobody whose favorite policies will be shielded from the chopping block.

  • Stephen Lathrop||

    swood, your insistence on an "agreement" leaves me puzzled. What agreement? Surely not the Constitution. That, as I have tried to suggest, is a decree, not an agreement. The government receiving that decree from the sovereign is not at liberty to negotiate it.

    Perhaps you refer to the meeting of minds among the drafters of a constitution, about what they wish jointly to decree? But understanding it that way doesn't do much to support your choice of vaguely contractual language to describe what you think is going on in the sovereignty business. So on the whole, I can't follow your argument. Can you say more?

  • swood1000||

    swood, your insistence on an "agreement" leaves me puzzled. What agreement?

    The "collective sovereignty" reaches an agreement among themselves as to what will be in the constitution and how the constitution can be modified. This provides the certainty and stability necessary for a prosperous society. Then one faction of the "collective sovereignty" desires that the constitution be changed but they lack sufficient popular support to make those changes by the previously agreed upon constitutional methods and they don't want to attack the constitution from the outside, with the risk of bringing it down, because of the instability this will bring. So instead they decide to cause the judiciary to interpret the constitution to bring about their desired result even though the desired interpretation is not the one agreed to by the "collective sovereignty" at the time the words were added to the constitution, nor is such a change in meaning in accord with how the "collective sovereignty" thought that such changes could be made.

    This is subversion and is illegitimate, right? Either live under the rules you agreed to or openly advocate for the change you want outside the constitution.

  • jph12||

    "if the results desired by Society change over time"

    Who is "Society" and who is determining whether "Society"'s desired results are changing over time?

  • Stephen Lathrop||

    I dunno. Ask Wahoo. I didn't much need to specify, because I just picked it up from him to keep the reply in terms of his question.

  • OldCurmudgeon||

    > if the results desired by Society change over time, what is the virtue of a consistent body of law?

    To protect minorities.

    > Are you suggesting it is a virtue for consistency in the law to hamper Society's ability to effect change?

    Yes. Because we should try to make rule behind the veil of ignorance as much as possible i.e., before we know whether we are on the demanding or receiving end of government action.

  • Stephen Lathrop||

    Curmudgeon, we aren't talking about the same thing.

    You are focused on government action. I am focused on amendment ratifications and constitutional conventions—which are objects of sovereign power. The standards applied must be different.

    With regard to the structure of government, wise sovereigns protect citizens from majoritarian abuse from government, by decreeing rights, enumerating government powers, and otherwise restricting freedom of government action. Your "veil of ignorance," remark is applicable there, and could help as a standard for guiding sovereign wisdom.

    Where it is inapplicable is on questions implicating the assembly of sovereign power itself. Especially with regard to popular sovereignty, any case where a minority achieves ascendancy over a majority tends toward tyranny. That is the fundamental insight on which the American Revolution, American constitutionalism, and the notion of American liberty, were founded. It has worked historically well. I see no reason to back away from it.

    I am simply asking everyone to notice that the cases differ, so they don't misapply different rules which belong to regulating government to the unlike case of exercising sovereignty.

  • NToJ||

    "Are you suggesting it is a virtue for consistency in the law to hamper Society's ability to effect change?"

    That's what living constitutionalism does. What do you think a living constitutionalist is overturning when they declare a law unconstitutional?

  • Stephen Lathrop||

    ?

  • NToJ||

    If a state legislature passes a law--that is changes the law--and it is invalidated by the Supreme Court on the basis of a living constitution, that "hamper[s] Society's ability to effect change".

  • Stephen Lathrop||

    ?

  • Smooth Like a Rhapsody||

    I assume Lathrop's supercilious responses derive from the fact that, like Rousseau's General Will (of which, no doubt, he is a great admirer), living constitutionalism can never be wrong.

  • Stephen Lathrop||

    I don't intend to be supercilious. I genuinely can't make heads or tails out of what NToJ is trying to say. Probably we are working from different context, but I can't even imagine what his might be, so I am at a loss even for a polite question.

  • NToJ||

    We can tell, Stephen.

  • Last of the Shitlords||

    If the constitutional ends of the population change over time then just amend it. That's part of why that process is available.

    If the document just means whatever you feel like, then it means nothing at all. I'm not sure why anyone sees this as at all arguable.

  • Last of the Shitlords||

    'Needs', not 'ends'

  • Stephen Lathrop||

    I'm not sure why anyone sees this as at all arguable.

    It's arguable because the premise that a constitution regulates an exercise of sovereign power (in this case, the amendment you call for) is self-contradictory. To make sense of Article 5, you must read it as applicable only to cases where government takes an initiative to amend—which is to say Article 5 regulates what government can do with regard to constitutional change, but does not regulate what the sovereign People can do.

    You can't assume the People remain sovereign, but also insist that their "constitutional needs," are subject to regulation by the Constitution. That would make the Constitution sovereign over the People, instead of the reverse.

  • Ghost of Patrick Henry||

    Actually, its not only leads to, but explicitly means "No Constitution at all."

    The whole purpose of a written Constitution is to SET the rules by which government operates, to make these rules SET, not living, not changeable other than through the process in the Constitution.
    This was done to avoid mob rule and to protect individual rights.

    The leftist project is to undo all of that. This is why they must be overcome.

  • Rev. Arthur L. Kirkland||

    Leftists want to undo our constitutional structure.

    Right-wingers are poorly educated, stale-thinking, superstitious, authoritarian bigots concentrated in desolate, can't-keep-up communities after generations of being on the wrong end of bright flight.

    Where is the hope for America?

  • Krayt||

    You assume there ever was any hope. If the goal of the Constitution was to restrict what the government could do, to forestall a return to a tyrant king, can you say a living constitutionalism is a good thing in lieu of these past two years?

    I wouldn't blame it on the bigots. It is, and always has been, properly lain at the feet of "emergency powers", AKA unconstitutional powers.

  • Rev. Arthur L. Kirkland||

    You assume there ever was any hope.

    America is a fine country. It has improved greatly throughout my lifetime. I expect America to continue to improve -- not without the occasional setback or mistake, not always at a particular pace, but generally to improve through reason, education, tolerance, science, liberty, inclusivity, and effort.

    More and more Americans live in modern, successful communities. America has diminished unearned privilege, institutional intolerance, and superstition-based policy, and replaced them with better approaches.

    Hope and change have made America better for more than a half-century and I expect that to continue.

  • Last of the Shitlords||

    "More and more Americans live in modern, successful communities. America has diminished unearned privilege, institutional intolerance, and superstition-based policy, and replaced them with better approaches."

    Yet you and your treasonous progressive fellow travelers are dong just the opposite.

  • ravenshrike||

    Leftists, including quite mainstream ones and even poly sci professors who sure as fuck should know better are currently blathering about the god damn Senate and House popular votes as if they were a legitimatething. So yes, the left wants to completely dismantle not only the rule of law but any significant check on majority rule. They are, to anyone who's not a complete fucking moron and has studied even a little bit of history concerning pure democracies, batshit fucking crazy.

  • Rev. Arthur L. Kirkland||

    I encourage Republicans to continue to push against popular will. It will give them something to whine and moan about as they continue to lose the culture war and become a fringe party.

  • ravenshrike||

    So, just to get you ON THE RECORD concerning this, do you think that in any single election, the nationwide Senate and House popular vote totals are any sort of legitimate metric?

  • NToJ||

    We don't know what you mean by "legitimate". It's a metric, for sure. The Senate vote isn't much of one, since only a fraction of those spots come up on any given year. The House vote, though, tells a story about who the country is identifying most at any given moment. If someone were to claim, e.g., that the 2010 election was a clear mandate by the electorate rebuking Democratic rule (at least in the House), you'd want to know the total vote count to substantiate the claim.

  • ravenshrike||

    Still a worthless metric because, among other reasons, different states have different voting procedures.

  • NToJ||

    Why would the metric be worthless? Can you give some examples of different voting procedures that, in your view, affect the outcome?

  • Last of the Shitlords||

    "Right-wingers are poorly educated, stale-thinking, superstitious, authoritarian bigots concentrated in desolate, can't-keep-up communities after generations of being on the wrong end of bright flight."

    This is just your tired rhetoric. Not an argument. Since you don't have one.

    We get it, you and your proggie pals want to do whatever you feel like and a consistent set of laws and principles gets in your way.

    But hey, you feel free to repeat your tired bullshit rhetoric for the 13,763rd time. It really impressive everyone.

  • ECONLAW||

    Any true Originalist would use the 9th and 10th Amendments to eviscerate the controls over the Individual and State now imposed by the Federal government. There is a wealth of material that any competent Anthropologist could study to determine what "rights" the citizens of the United States excluded from Federal authority that were not expressly set forth in the Bill of Rights. However the religious, progressives and social constructionists would never allow Liberty to flourish as anticipated by our founding fathers. It has too long been subverted by the progressive and religious movements post Civil War.

  • Martinned||

    Also: a true Originalist would note that the judicial power is vested in the Supreme Court, etc., and accept that that implies the common law method as used during the founding era, which includes stare decisis, but also deviations from precedent.

  • Smooth Like a Rhapsody||

    Meaning...what, exactly?

  • Martinned||

    Bluntly put, that the constitution means whatever the Supreme Court says it means.

  • OldCurmudgeon||

    That doesn't follow from your premise. All three branches must agree something is Constitutional or it doesn't happen. Or put differently, SCOTUS isn't the sole interpreter, just the last interpreter.

    (for this reason, GWB's signing of McCain-Feingold -- while simultaneously stating he didn't believe it was Constitutional -- was an gross dereliction of his duty).

  • Smooth Like a Rhapsody||

    Thank you for being so forthright.

  • NToJ||

    What do you make of Article III, Section 2 authorizing Congress to limit SCOTUS's appellate jurisdiction? How does that square with your supremacy argument?

  • Eddy||

    Another example of living constitutionalism would be *Buck v. Bell,* upholding sterilization of "defectives." Instead of looking to the original public meaning to see if bodily mutilation, without conviction of crime, or interference with the ability to form marital bonds, was consistent with the privileges and immunities of American citizens, Justice Holmes put on his cheerleader pom-poms and talked about how society can call upon these imbeciles to make sacrifices for the common good etc.

  • Eddy||

    By analogy - there are limits on the government (just compensation) when it takes private property for public use, implying that if the proposed use *isn't* public, the government can't take the property at all. It would be absurd to say that because the taking wasn't for a public use, therefore the government is not under constitutional contstraint.

    The 8th Amendment puts limits on bodily mutilation of convicted criminals - such mutilation can't be cruel and unusual - how much more, then, must the Constitution protect citizens who *haven't* been convicted of crime from bodily mutilation! It would be absurd to say that convicted criminals are protected against mutilation to a greater extent than the innocent.

  • DiegoF||

    The sole dissent in Buck v. Bell, "Catholic seat" holder Pierce Butler, seems to have been quite libertarian indeed, from what I read of him!

  • Eddy||

    Yes, but unlike some more famous justices, he had most of his personal papers burned. Add his unpopularity among the folks who write legal history, and he's more obscure than objectively he ought to be.

  • NToJ||

    And he didn't write a dissent.

  • NToJ||

    The 8th Amendment would not have affected Buck v. Bell, which came out decades before incorporation of the 8th against the states.

  • Eddy||

    I was discussing the original public meaning.

    I'm not sure how the framers and adopters of the 14th Amendment went to all the trouble of protecting the privileges and immunities of American citizenship if all they meant was the right to use interstate waterways, which the Commerce Clause generally protects anyhow.

  • NToJ||

    Maybe what they meant was:

    The clause of the Fourteenth Amendment, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States," does not, in the opinion of the committee, refer to privileges and immunities of citizens of the United States other than those privileges and immunities embraced in the original text of the Constitution, article four, section two. The Fourteenth Amendment, it is believed, did not add to the privileges or immunities before mentioned, but was deemed necessary for the enforcement as an express limitation upon the powers of the States. It had been judicially determined that the first Eight Amendments of the Constitution were not limitations on the power of the States, and it was apprehended that the same might be held of the provision of the second section, fourth article.

  • OldCurmudgeon||

    "But such formal updating is extremely difficult, because the US Constitution is perhaps the hardest to amend in the world. "

    Semi off topic, but... the linked article essentially argues the formal amendment process must be difficult because it's happened so rarely. However, there is an alternate explanation, namely that the formal amendment process competes with the easier "living constitution" process.

    Or put differently, one plausible reason nobody bothers to actually amend the constitution is that it's just easier/cheaper to file a lawsuit and convince 5 judges.

  • Stephen Lathrop||

    OldCurmudgeon, taking what you say as true, it does not contribute much to answer the question of whether the Constitution has become too hard to amend. If an amendment were only appropriately difficult to obtain, it could be easier/cheaper to file a lawsuit, and likewise, if an amendment had become impossible to obtain. In the latter case, the notion of, "competes with the easier 'living constitution' process," becomes meaningless. The formal amendment process would be out of the competition.

    I suggest that at least on some relevant subject matters, changes in state population distribution have made the formal process completely impossible, because there can be no practical ability to overcome the objections of the tiny number of opponents required to block an amendment in those cases. What the three-quarters standard for ratification obscures is that ratification voting, being per-state, doesn't permit even three-quarters of the population reliably to prevail. On many subject matters, the practical percentage of the population necessary to block an amendment is certainly in single digits. At least theoretically, and not implausibly, the necessary percentage of objectors could go below 1%, if those comprised an effective swing vote in legislative races in less populated states.

    There is no historical evidence that the founders contemplated that development. It could not have occurred with the distribution of state populations which prevailed in the founding era.

  • Brett Bellmore||

    As I've remarked before, the ratification process doesn't actually demand a high level of public support for an amendment. It requires that support be well distributed.

    If 51% of the public want an amendment, and that 51% are uniformly distributed, every legislator will find that 51% of his or her constituents favor the amendment, and originating and ratifying the amendment will not be difficult.

    OTOH, if 51% of the public want an amendment, and they're all living in a half dozen states, with everybody outside those states opposed, the amendment is doomed.

    The amendment process isn't designed to prevent amendments unless outrageously popular. It's designed to prevent amendments with only local appeal. Which is perfectly appropriate in the constitution of a federation.

    You're talking about what could theoretically block an amendment. Perhaps you should demonstrate that an amendment has ever failed ratification in that manner? I went over the numbers for the ERA once, and discovered that the states that did ratify represented virtually exactly the same fraction of the population as they did of states; The theoretical concern you express had nothing to do with the failure.

  • Brett Bellmore||

    cont:

    But the problem right now isn't with ratification, it's with origination. Congress no longer bothers to originate amendments, Even the two amendments that were part of Gingrich's "contract" were managed so as to avoid any chance of being originated; They were brought to the floor in multiple versions, so that everybody who had a need to tell the voters they'd voted for them could, without risk of any particular version getting enough votes to be sent to the states! And those were amendments that polled very well, and would almost certainly have been ratified if originated.

    The obstacle is Congress, and OldCurmudgeon's theory does explain why Congress would have stopped originating amendments.

    Here's my prediction: If we get a convention, we will suddenly find that amending the Constitution isn't nearly as hard as living constitutionalists claim. Or hope!

  • Stephen Lathrop||

    Bellmore, any convention with rules based on per-state voting or per-state ratification would fail to constitute a government encompassing the majority of America's present inhabitants. It would thus be incapable of achieving sovereign legitimacy. Conversely, advocates for any such convention would not consent to population-based voting and ratification rules—so no convention is going to happen. Or if it does happen, it will risk miscarriage and dissolution of the union.

    Probably, the most urgently needed Constitutional change now is for an amendment to get rid of the existing constitutional convention clause. That is a time bomb ticking away in the foundation of what has been the most successful national polity on earth. If it is ever invoked—and particularly if it is invoked among a populace as uneducated on questions of sovereignty as ours now is—it would likely deliver catastrophe—which to most people would seem to come as a bolt from the blue.

  • swood1000||

    Bellmore, any convention with rules based on per-state voting or per-state ratification would fail to constitute a government encompassing the majority of America's present inhabitants. It would thus be incapable of achieving sovereign legitimacy.

    This is also an argument that the Senate and the Electoral College are illegitimate. The founders were well aware that they were creating a system that gave inordinate power to the people in smaller States. It was a calculated move in order to get the smaller States to join the union. Now you apparently propose to remove this benefit on the grounds that it is illegitimate. Isn't there something wrong with this picture?

  • Stephen Lathrop||

    It is not an argument that the Senate and the Electoral College are illegitimate. They are institutions of government. Like all government institutions, they have no claim to sovereignty. As government institutions, they enjoy government legitimacy, by virtue of conformance to the Constitution—which is a decree made at pleasure by the sovereign People.

    If a sovereign decrees it, government legitimacy can attach to anti-majoritarian institutions, and do so on nothing more than the sovereign's say-so. Understanding that is fundamental to understanding the historical basis for anti-majoritarian government limitations in America.

    Sovereign legitimacy is different than government legitimacy. The latter comes from the sovereign; the former comes from the people. To be legitimate, a sovereign does need majority support, or something close to it. And a popular sovereign needs that more than the other kinds.

    The flaw in the Constitution's Convention Clause is that it conflates anti-majoritarian government legitimacy with sovereign legitimacy. That's why the clause needs amending. Without it, the clause threatens to fasten minority rule on America's majority, as a matter of sovereign decree. That would be tyranny.

    Perhaps the founders did not anticipate that flaw because it could not have happened then, given with the population distribution among the original states. That distribution has changed, and it can happen now.

  • swood1000||

    The flaw in the Constitution's Convention Clause is that it conflates anti-majoritarian government legitimacy with sovereign legitimacy.

    At the time of the 1790 census, there were 16 states, three-quarters of which is 12. The population of the 12 smallest states was less than half of the total population of all states (although I admit I didn't reduce the slave population by two-fifths). It is clear that the founders recognized the possibility that less than 50% of the total population would be able to amend the constitution. It is clear that the sovereign at the time (the people) chose this option. Is there a principle of nature that renders this judgment invalid? Are constitutional systems of this kind invalid?

  • Stephen Lathrop||

    swood, there were only 13 states in 1790.

    As for your other remarks, my subject was a constitutional convention, not the ratification process. Is it your suggestion that in 1787, 10 states—absent Massachusetts, Pennsylvania, and Virginia—could have convened a constitutional convention for the United States? And those 3 large states would have just gone along, and ratified whatever the others put together? Something approximating that is the proposal ALEC proposes to inflict on the U.S. today.

    The problem isn't principles of nature. The problem is politics. In politics conducted on the principle of popular sovereignty, minorities don't rule over majorities—not legitimately. But ALEC wants minority rule (and plutocracy, by the way), so it proposes a constitutional system ruled by per-state voting, put together at a per-state voting convention, and with popular sovereignty sidelined. State population distribution changes since the founding era make that a political impossibility today. It's madness.

  • swood1000||

    there were only 13 states in 1790

    I was referring to the 1790 census, which separately listed Kentucky (originally a part of Virginia), Maine (originally a part of Massachusetts) and Vermont (originally a part of New York).

    Is it your suggestion that in 1787, 10 states—absent Massachusetts, Pennsylvania, and Virginia—could have convened a constitutional convention for the United States?

    Shortly thereafter, when these 16 states existed, 12 of them (constituting less than 50% of the population) could have amended the Constitution.

    Let's be clear. Whether an amendment is proposed by Congress or by a national convention, it must be approved by ¾ of the states. You say that the framers never envisioned the possibility that smaller states could have an outsized influence in proposing amendments. Of course they did, which was the very reason for the alternate route. They weren't worried because they couldn't imagine the federal government trying to force a state to do something. The Civil War clarified this.

    What result from a constitutional convention would be more divisive than the Supreme Court decisions forcing abortion on demand and same-sex marriage on the country? The Supreme Court does not even have the semblance of a democratic process, yet these things were accepted. But you say that a constitutional convention would not be?

  • Dilan Esper||

    Our current Constitution, by that standard, has no sovereign legitimacy. Slaves, women, non-property owners and Indians had no representation.

    I think a convention is a bad idea, but as long as the government maintained a monopoly on the use of force to compel adherence to the new Constitution, that it the only sovereign legitimacy required.

  • jph12||

    Plus it was enacted through a per-state ratification process.

  • Stephen Lathrop||

    @ jph12 — Plus it was enacted through a per-state ratification process.

    Which was legitimate then, and would not be legitimate now. The difference lies in the dissimilar population distributions among states, then and now.

  • swood1000||

    Which was legitimate then, and would not be legitimate now. The difference lies in the dissimilar population distributions among states, then and now.

    According to the 1790 census, Virginia had over ten times the population of Delaware. Why was this legitimate then but today's disparities (the difference in population between the largest and smallest has grown more than six-fold) are not?

  • Stephen Lathrop||

    jph12: Plus it was enacted through a per-state ratification process.

    jph12, the procedures followed at the Philadelphia convention made per-state ratification then unlike its use would surely be now. In Philadelphia, the guiding criterion in every debate prioritized a finished constitution which could be ratified unanimously by the states. Proposals which threatened that prospect of unanimity were systematically discarded. And unanimity was (just barely, after delay by Rhode Island) achieved.

    If that same rule for debate and constitutional structure could be made mandatory now, then there would be no reason for concern about a constitutional convention to be held now. Unanimity precludes minority tyranny.

    Alas, there is zero prospect of unanimity now. Today's ALEC-inspired agitation for a constitutional convention gives plain reason to suppose minority tyranny is exactly what today's would-be constitutionalists intend.

  • jph12||

    No, the Constitution went into effect when it was ratified by 9 of the 13 states, just like it was written. And the finished Constitution was not something that could be ratified unanimously--only five states ratified the Constitution, as written, without the promise of amendments to address significant concerns with the document. And unanimity was only achieved because the federal government threatened to punish Rhode Island for its dissent.

  • Stephen Lathrop||

    Dilan Esper, sufficient power is indeed a test of sovereignty. But it is not the test of sovereign legitimacy. Support from the sovereign's subjects, and especially their willingness to make the sovereign's objectives their own objectives, are the proper tests of sovereign legitimacy. Note that in the case of popular sovereignty, part of the genius is that the formula is somewhat reversed, and the subjects get to make the sovereign's objectives conform to those of the subjects.

    But I suggest your critique is mistaken as applied to the Constitution, which is not the sovereign. It is merely the sovereign's decree. The distinction matters, because the sovereign of the founding era is not the sovereign of today, and the groups you mention are no longer unrepresented, or even in existence in the case of slaves.

    Use of sovereign force to compel unwilled adherence on a majority of subjects describes tyranny at its worst. Even compelled adherence applied against a minority will often be tyrannical.

    Majoritarian sovereign legitimacy matters. Sovereign wisdom matters. Anti-majoritarian protection from government matters. Constitutionalism matters. And none of those are likely to get proper adjustment if citizens give no thought to sovereignty, or conflate it with government, or fail to understand the different standards that need to be applied to all these different concepts.

  • OldCurmudgeon||

    Re the first paragraph, I think you're just repeating my point re the Eric Posner article. We have no evidence that it's objectively 'too hard' to properly amend the Constitution. All we know is that the Living Constitution procedure is easier, and thus, will always be used.

    Re the second paragraph, There are counter examples of amendments that 'shouldn't have passed' by that standard. For example, for the 17st amendment, the people most "harmed" by the amendment (i.e., state legislatures who lost the right to solely select senators) where the very ones who had to vote for it. Or the 27th amendment, which limits Congress's own powers. Or the 25th amendment... something for which there really is no natural constituency. IMHO, however, it's telling that the these all happened before the Living Constitution revolution.

  • PoxOnBothYourHouses||

    Stephen Lathrop: "At least theoretically, and not implausibly, the necessary percentage of objectors could go below 1%"

    Perhaps, but it goes the other way as well. An amendment could be opposed by a large percentage of the population but /pass/ if supported by simple majorities in 38 states.

    From this standpoint, a proposed constitutional amendment that served conservative interests might have a head start over one that served progressive interests, but it's doubtful in any event unless supported by fairly large numbers of centrists. It's certainly easier to change the Constitution via Court decisions, which of course is why Supreme Court nominations have become so contentious. (here's hoping for good health and a long, active life for Ruth Bader Ginsburg).

  • Brett Bellmore||

    Bingo! This is exactly it. Congress no longer originates amendments, because they can obtain any "amendment" they want more easily through the judiciary, and without the risk of rejection by the states.

    Though I think the real obstacle to formal amendment today is that the interests of federal office holders have diverged sufficiently from those of the general public that the former have no interest in originating amendments the latter would ratify, (Term limits, balanced budget...) while knowing the latter would not ratify such amendments as the former would LIKE to originate. (SSM, general police power for the federal government...)

  • Eddy||

    Meanwhile, let's vivify the Constitution with more Living Constitutionalism - we as a society have evolved so as to respect crime victims in the criminal-justice process, and therefore -

    - Let's give victims the right to initiate private prosecutions like in England

    -In any case, let's give rape accusers the right to be protected from embarrassing cross-examination - we've progressed far enough beyond the era of rape culture that surely these poor victims have the constitutional right not to be harassed by defense attorneys!

    -Delays in the death penalty, according to the latest studies, create stress for the murder victim's relatives, so let's invent a constitutional right for victims to order a stop to all death penalty appeals after, say, three years.

    /sarc

  • Eddy||

    "But such formal updating is extremely difficult, because the US Constitution is perhaps the hardest to amend in the world."

    The majority of proposed amendments which got past Congress were accepted by the states.

    There's famous exceptions, of course, like the ERA and the child labor amendment. But no worries, the substance of these amendments have been adopted through Supreme Court opinions.

  • DiegoF||

    The Constitution's amendment process is indeed one of its worst parts. But that's because it is downright sloppy there--with the effect that it is potentially too easy to amend.

    For instance, there is no requirement for sunsets for amendments, which means that there are old zombie amendments floating around out there like the 27th was. They can never be killed. Some people think the ERA is one, or that Congress can make it one retroactively at any time. I wish I could be dismissive of this claim as I'd like.

    Also the amendment process itself can be amended. Perhaps this was not unintended; who knows?

    Also while certain portions of the Constitution are unamendable, the part that declares them as such is not! Though perhaps a reasonable textualism would hold this to be implied. Perhaps more interesting is whether--since after all the amendment process itself is almost certainly amendable, and therefore could be made harder--portions (either existing or new) of the Constitution could be specially designated as harder to amend. Or impossible to amend! Could that stick? An example was the "Corwin Amendment," the last-ditch Unionist attempt to enshrine slavery as unamendable. This takes on an extra importance because it is actually one of those "zombie amendments" that could be passed by the states at any time. (The others, thankfully, are just stupid.)

  • DiegoF||

    If Trump gets another justice look for that "child labor amendment" to come back to sudden life and be passed as well. Vermont, New York, Massachusetts, Rhode Island, Connecticut, Delaware, Maryland, and Virginia--all of which but New York and Rhode Island explicitly rejected it the first time around--are now blue states that will pass it as a virtue signal. That would leave it only two shy; and I am sure between North Dakota, Nebraska, and every old slave state south of Kentucky and West Virginia except Oklahoma and Arkansas, a couple will come through.

  • Drewski||

    Nebraska would never ratify it; indeed, the state overwhelmingly supports the tradition of using child labor to detassel commercial corn whenever the issue comes up. This doesn't bother or affect me, but the state would viciously oppose federal control of the issue.

  • MatthewSlyfield||

    "For instance, there is no requirement for sunsets for amendments, which means that there are old zombie amendments floating around out there like the 27th was."

    Not nearly as many as you seem to think. The general practice has been for congress to include an explicit sunset clause in the originating legislation. AFIK, the only zombie amendments floating around out there without sunset clauses are the few amendments from the original bill of rights that were not ratified at the time of the founding. If you know of amendments that were originated more recently without sunset clauses, you should cite them.

  • Eddy||

    There's a Congressional reapportionment amendment accompanying the proposed bill of rights - it hasn't *explicitly* sunsetted.

    Likewise the 1808 (?) amendment to denaturalize U. S. citizens who accept foreign honors. If a big foreign-corruption scandal hits, this amendment may be dug out of mothballs.

    There's the proposed amendment of 1861 prohibiting future amendments affecting states' "domestic institutions," i. e., slavery. Arguably that one was made moot when the 13th Amendment was ratified.

    There's the Child Labor Amendment, but the substance has already been enacted by statute.

    The Equal Rights Amendment had a sunset clause in the submitting resolution but not in the text. Congress took advantage of this to extend the ratification deadline, but the states missed even this later deadline. There's some discussion now about how the ERA isn't dead, just resting, and can still be ratified (supposedly).

  • Eddy||

    Unratified* Titles of Nobility Amendment:

    "If any citizen of the United States shall accept, claim, receive or retain, any title of nobility or honour, or shall, without the consent of Congress, accept and retain any present, pension, office or emolument of any kind whatever, from any emperor, king, prince or foreign power, such person shall cease to be a citizen of the United States, and shall be incapable of holding any office of trust or profit under them, or either of them."

    https://bit.ly/2zEORMS

    *But ask any good conspiracy theorist and he'll explain how it was actually ratified but suppressed by bankers and lawyers

  • Brett Bellmore||

    "There's a Congressional reapportionment amendment accompanying the proposed bill of rights - it hasn't *explicitly* sunsetted."

    However, IIRC, it contained a drafting error that made it pointless to ratify.

  • captcrisis||

    I find it very unlikely that Jim Crow laws would be offensive to men who were actual slaveowners and considered slaveowning to be protected by the Constutition over whose drafting they had control.

  • jph12||

    Which of the drafters of the 14th Amendment were slaveowners?

  • captcrisis||

    None of the drafters were, but all of the ratifiers were, in the Jim Crow places we're talking about.

  • Martinned||

    Which raises an interesting question about the reconstruction amendments: Does the original public meaning in the southern states matter, given that they only ratified over the barrel of a gun?

  • Brett Bellmore||

    The reconstruction amendments are a terrible guide to constitutional tradition, for exactly that reason: They were ratified at gun point. In some cases, literally, in legislative chambers with soldiers present.

  • OldCurmudgeon||

    That raises the interesting question of whether they were properly ratified. Normally, 'duress by physical compulsion' voids contracts.

  • jph12||

    How did the ratifiers in the Confederate States have control over the drafting of the 14th Amendment?

  • Sarcastr0||

    Doesn't the intent of the ratifiers who consent matter?

  • jph12||

    If you can explain what your question has to do with my question, I'll answer.

  • Sarcastr0||

    Why do you think captcrisis brought up his argument? My question would be relevant to that thesis.

    Keeping your question narrow means you don't address his argument. So either you are being pedantic or...huh. I guess just pedantic.

  • jph12||

    See, you are just to dumb to be worth engaging.

  • iowantwo||

    Isnt it the role of congress to address the changing mores of the day? There is no requirement that SCOTUS steps into these quagmires. Pass a law. If its a mistake, the fix is much easier.

  • Stephen Lathrop||

    Somin (linked comment): I believe (at least tentatively) that constitutional rules adopted through supermajority processes are likely to be, on average, better (on consequentialist grounds) than those developed by judges or conventional political majorities.

    Seems like there ought to be an urgent question about the particulars of the supermajority processes being relied upon. Otherwise, don't you risk (maybe Somin thinks it's a feature, not a risk) tyranny by minority? So some super-majority processes might be salutary. Others might be detrimental.

    I suggest this nation, because of ongoing changes in its per-state population distribution, has for some time been verging over toward too much minority power. The practical size of a political faction sufficient to block Constitutional amendments is, for many contested propositions, probably now down to single digit percentages of the national population. How small can that percentage go before a republican form of government is at an end?

  • Brett Bellmore||

    But, again, demonstrate that any amendment has ever been blocked in that way. All decision processes have their failure modes, that doesn't mean those failure modes are actually occurring in real life.

    Moreover, you have to ask: What sort of amendment would be opposed by only the 17 smallest states? Maybe an amendment prejudicial to the interests of small states? Rather than an amendment whose support just coincidentally lined up that way?

  • DiegoF||

    What we have here is a difference of perspective that hinges on the underlying political philosophy of our republic. It began its life with the underlying philosophy being one of great fear of mob rule every bit as much as autocracy, and of several republics agreeing to come together in union to promote their mutual defense and prosperity. Subsequent events have seriously eroded this perspective; the governance of our republic has become far more centralized, activist, and majoritarian than anyone could have originally dreamed. So there is far less of a psychological barrier at this point when someone finds their preferred policies thwarted by the minority, to simply thinking "this is undemocratic" and that is all there is to say in terms of political morality; that is the only possible moral desideratum anyone might justly pursue in designing a republic, whatever its history.

  • Stephen Lathrop||

    DiegoF, I offer you a challenge. Your comment presents conclusions about the founding era, about the course of political history since, and about the state of politics today. My challenge is that you review your comment line by line. Each time you find something conclusory (example: "It began its life with the underlying philosophy being one of great fear of mob rule every bit as much as autocracy, . . .), I suggest you ask yourself, "How do I know that?"

    If you can't come up with a clear answer pointing to a specific authoritative source (such as something a specific founder said at the convention), then pause to consider. It might be time to ask yourself whether your grasp of "underlying political philosophy" is as reliable or well-founded as you suppose.

    Especially, where you write, "the governance of our republic has become far more centralized, activist, and majoritarian than anyone could have originally dreamed," it suggests to me that you have not read Madison's Notes of Debates in the Federal Convention of 1787. Perhaps that would be a good place to start.

    Just to give you a teaser, did you know that Madison wanted further to centralize the federal government by giving it veto power over state legislatures?

  • Martinned||

    Given that the smallest 17 states by population are Hawaii, Delaware, Rhode Island and otherwise lots of red states (and whatever Vermont is), there are lots of things that are not objectively prejudicial to the interests of small states that would still be opposed by 17 out of, say, the 20 smallest states.

    The modern day analogy is how the arch-conservative DUP in Northern Ireland has consistently blocked decriminalising abortion and legalising same-sex marriage by passing a petition of concern requiring it to have cross-community support (= majority on both the Catholic and the Protestant side), even though abortion and same-sex marriage have nothing whatsoever to do with the peace process or the power balance put in place in 1998. But since the petition of concern only requires 30 votes in the assembly, all it takes is 30 assembly members to hold the Province hostage.

  • Eddy||

    Won't someone think of the (too many living) children?

  • Eddy||

    Why do you give N. Ireland an example of constitutional failure - it seems the opposite to me.

    The people of Northern Ireland ended three decades of violent "Troubles" by working out a constitutional arrangement for living together in peace. Who knows how long the arrangement will last, but for now it's kept down the number of people being blown up in pubs, etc.

    Given the intercommunal tensions (to use a euphemism of choice) the constitutional arrangement they came up with involved a rejection of pure majority rule. Recalling that *pure* majority rule would mean either the Catholics screwing the Protestants or vice versa, not to mention a return to violence.

    It's no wonder that some friendly Americans were around for consultation during the peace talks - a good source of advice about how a Constitution works and doesn't work.

  • jph12||

    You don't seem particularly well informed about the political leanings of the various states.

  • Stephen Lathrop||

    Brett, here is an example of an amendment such as you ask for.

    Consider an amendment on congressional districting, to end gerrymanders of all sorts. You accomplish that by virtual districting. Each voter is assigned—at registration, and at random—to a virtual district without geographic boundaries. States still get the same census-based allocation of districts. Each representative still represents the constituents from his or her district, and continues to do so from election to election. Voters remain in the same district until they move to a new address and re-register there—even though address location has nothing to do with which district they are assigned.

    Precisely because such a system would end gerrymanders, and also would do away with district-dependent partisan voting inefficiencies, I predict it would be opposed by small red states. Those would leverage the minority control of the ratification process which per-state voting happens to afford them, and defeat the amendment. Their opposition would be partisan, and not affected by an consideration of relative advantages for small or large states, because the proposed amendment offers none.

  • jph12||

    That's quite the demonstration. Propose a terrible amendment, predict that it would be opposed by the small red states, ignore that it would be opposed by the big states, then pretend you've made your point. Brilliant!

  • Stephen Lathrop||

    I dunno, Smooth. Constituent services? National statesmanship? Targeted social media? Doing the public's business? Pork barrel stuff for classes of constituents?

  • Smooth Like a Rhapsody||

    How do you "target" social media to 700,000 randomly selected people scattered across 50 states?

  • Stephen Lathrop||

    Um, scattered across 1 state? Maybe I didn't make that clear. I'm still talking about state-by-state congressional representation, just from virtual districts within states.

    But of course the answer to your targeting question is, by name and address, from registration records—same way they do it now.

  • Stephen Lathrop||

    Aside from the fact that it would create the most impartial, tinker-proof electoral system imaginable, what don't you like about it, jph12?

  • Smooth Like a Rhapsody||

    Actually, when you think about it: Lathrops idea is sort of how the British parliament was elected. Basically hired guns from wherever would be given a constituency.

  • Stephen Lathrop||

    Sort of like that, in the one way you suppose, Smooth. But different, and far better, otherwise. For instance:

    1. Every district would have almost exactly equal numbers of voters assigned to it.

    2. Purely parochial interests would tend to submerge, while state and national interests came to the fore.

    3. The diversity of interests existing among randomly chosen voting populations would tend to broaden political contests, while moving winning tactics toward the political center.

    4. Minority counts among districts would equalize, tending to give minority voters more bloc voting strength as swing voters. They would newly get that potential in every closely-contested district race. (But at a likely cost of losing assured minority seats among office holders.)

    5. Stagnant districts would be less likely, because with a wider diversity of interests among voters, change over time would have more ways to get featured in each district.

  • jph12||

    Many of the things you consider bugs of the current system are actually features. You proposal goes against the entire principle of the House. It also makes constituent services much more difficult and expensive.

    And no, it's not the most impartial, tinker-proof electoral system imaginable, so you are wrong there too.

  • Smooth Like a Rhapsody||

    How does one establish a reputation, or conduct a campaign in a "virtual district "?

  • MatthewSlyfield||

    Forget reputation and campaigning, how do you manage the election process itself? We currently synchronize elections across many layers of government, so we can put everything on one ballot. This is done supposedly to manage the costs of running the elections and counting votes.

    How can we manage this with virtual districts? It would be a nightmare.

    The only option would be to separate all the elections and referendums so they are all on different days with only one issue / office per ballot.

    This would make voting much more inconvenient and as much as people complain about voter turnout now, this would likely drive it even lower.

  • Stephen Lathrop||

    Slyfield, I concede at least 1 problem, and you didn't mention it. Unmanaged, with voters for each district spread state-wide, each candidate for a congressional district might have to appear on every state ballot, and the results would have to be centrally correlated somewhere after the election. That wouldn't matter much in most states, but could be cumbersome for voters in the largest states. Also, without management it would create a risk that voters trying to choose from a long list could mistakenly vote in the wrong district.

    The way to correct that would be to tailor ballots to districts, and mail the ballots to voters based on which district they were in. This doesn't seem like an insurmountable problem in a technological age. And of course ballot tailoring by district is the way state elections have always been managed anyway.

  • dwshelf||

    Without the text, we're a fiddler on the roof. Eventually doomed to fall.

  • Eddy||

    A fiddler riding a unicycle on a tightrope while singing "If I Were A Rich Man."

    I'd watch that.

  • CJColucci||

    But for much of its early history, the Fourteenth Amendment's meaning moved in reverse, overwhelmed by the end of Reconstruction, the gradual entrenchment of Jim Crow in the South, and the consolidation of racial discrimination in the North.

    Moved in reverse from what? When was it different?

  • Dilan Esper||

    How come when I see Earnest Young's name I think he is affiliated with an accounting firm?

  • NToJ||

    Living constitutionalism is just an argument against constitutionalism.

  • Sarcastr0||

    Ooh, this on has me going. No time this thread, NToJ - but hopefully next thread we can get into your delegitimization of your opposition on this subject when you seem against it more generally on other threads!

  • NToJ||

    The arguments in favor of living constitutionalism (the living have to suffer the consequences, for instance) are normative. They are not interpretive. The argument that we should not have to live under the rule of the dead is an argument against constitutionalism.

  • C. S. P. Schofield||

    The core issue is dead simple; does the Constitution have a real meaning? If it does, 'Living Constitutionalists' want to be able to change that meaning at whim, which renders the whole thing meaningless. When they complain of the difficulty of amending the Constitution as matters stand what they really mean is "We don't think we can convince, bully, and flim-flam our fellow citizens into voting for the changes we want, and we're going to drum our widdle heels on the floor until you change the rules!".

    And they can piss up a rope and stand under it while it dries.

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