Amendment creep.

• Author: Marshfield, Jonathan L.
• Position: Introduction through III. Amendment Creep in Federal Constitutional Interpretation B. Article V and Institutional Arguments Regarding Judicial Review 1. The Inference of Judicial Restraint, p. 215-247

To most lawyers and judges, constitutional amendment rules are nothing more than the technical guidelines for changing a constitution's text. But amendment rules contain a great deal of substance that can be relevant to deciding myriad constitutional issues. Indeed, judges have explicitly drawn on amendment rules when deciding issues as far afield as immigration, criminal procedure, free speech, and education policy. The Supreme Court, for example, has reasoned that, because Article V of the U.S. Constitution places no substantive limitations on formal amendment, the First Amendment must protect even the most revolutionary political viewpoints. At the state level, courts have cited flexible amendment rules in state constitutions to support judicial restraint. Although largely unnoticed by scholars, amendment rules may be creeping into other areas of constitutional law.

This Article provides the first systematic investigation and assessment of "amendment creep"--the phenomenon where judges explicitly draw on amendment rules to interpret constitutional provisions unrelated to formal amendment. The Article concludes that federal and state amendment rules contain constitutional substance that can assist judges and lawyers in resolving many diverse constitutional disputes. Based on an extensive review of relevant Supreme Court and state high court opinions, the Article constructs a typology of amendment-based arguments. The Article concludes that amendment creep is an extension of a familiar form of constitutional reasoning known as structuralism, and that it may have several normative benefits for constitutional adjudication--such as promoting overall constitutional coherence and ensuring that judges give appropriate consideration to the democratic values that amendment rules embed in the constitutional framework.

TABLE OF CONTENTS INTRODUCTION I. STRUCTURALISM AND CONSTITUTIONAL MEANING A. Institutional Relationships and Constitutional Meaning B. "Interpretative Holism" II. AMENDMENT RULES AND CONSTITUTIONAL MEANING A. Amendment Rules and Substantive Values B. Amendment Rules and Institutional Arrangements III. Amendment Creep in Federal Constitutional Interpretation A. The Article V Amendment Process B. Article V and Institutional Arguments Regarding Judicial Review 1. The Inference of Judicial Restraint 2. The Inference of Judicial Power to Oversee Congress and the President 3. The Practical Need for Informal Judicial "Amendment" C. Article V and Freedom of Expression and Association D. Article V and Federalism IV. AMENDMENT CREEP IN STATE CONSTITUTIONAL INTERPRETATION A. State Constitutional Amendment Processes B. State Amendment and Institutional Arguments Regarding Judicial Review 1. Frequent State Amendment and an Inference of Judicial Restraint 2. Frequent State Amendment as a Basis of Judicial Activism C. State Amendment Rules and Substantive Constitutional Priorities 1. Variable Amendment and State Constitutional Priorities 2. Unamendable Provisions and State Constitutional Values 3. The Revision-Amendment Distinction and State Constitutional Priorities 4. Other Substantive Inferences V. A BRIEF COMMENT ON THE NORMATIVE IMPLICATIONS OF AMENDMENT CREEP CONCLUSION INTRODUCTION

There is an underappreciated source of constitutional meaning creeping into U.S. constitutional law. In Justice Scalia's recent dissent in Obergefell v. Hodges, he suggested that the Court wrongly interpreted the Fourteenth Amendment to guarantee same-sex couples the right to marry because the majority's interpretation was so revolutionary that it effectively rendered meaningless Article V's procedures for formal amendment. (1) Although perfunctory, Justice Scalia's reliance on Article V to support his interpretation of the Fourteenth Amendment illustrates a broader interpretive phenomenon whereby judges explicitly draw on formal amendment rules to shed light on the meaning of other constitutional provisions. (2) Indeed, judges of all interpretive persuasions have cited Article V and state amendment rules when addressing issues as wide-ranging as immigration, (3) criminal procedure, (4) free speech, (5) and education policy. (6) Contrary to conventional thought, (7) these cases suggest that amendment rules do much more than provide the technical guidelines for formal amendment. Amendment rules, it seems, are creeping into judicial interpretations of other areas of constitutional law.

Surprisingly, this technique of using amendment rules to help interpret substantive constitutional provisions has gone largely unnoticed and, as a result, is vastly understudied. (8) To be sure, much has been written about the relationship between formal and informal methods of constitutional change, (9) but until now no one has undertaken a systemic study of how U.S. judges explicitly draw on a constitution's formal amendment rules when interpreting other constitutional provisions, or whether this interpretative methodology is normatively desirable. (10) This Article addresses that void by providing the first description and assessment of what I call "amendment creep."

Consider two examples: one from the United States Supreme Court, and one from state constitutional law. In Whitehill v. Elkins, the Supreme Court considered whether Maryland violated the First Amendment by requiring teachers at the University of Maryland to certify that they were not members of a "subversive" group advocating "alteration of[] the constitutional form of government of the United States, or of the State of Maryland." (11) In holding that the oath was unconstitutional, the Court reasoned that the Constitution implicitly forbids the government from discriminating against people who "might wish to [peacefully] 'alter' our form of government" because the Constitution itself outlines a procedure whereby any conceivable changes can be made to the Constitution. (12) In other words, the Court inferred that the Constitution protects freedom of expression regarding radical political change because Article V places "no restraint" whatsoever on the kind of constitutional amendments that are permissible. (13)

In Maso v. State Taxation and Revenue Department, Motor Vehicle Division, a Spanish-speaking man living in New Mexico lost his driving privileges because he failed to respond timely to a written notice that was in English. (14) He appealed, arguing that the English-only notice violated his due process rights under the New Mexico Constitution. (15) The New Mexico Supreme Court held that an English-only notification satisfied the federal Constitution. (16) The Court noted, however, that New Mexico's due process clause can provide broader protections if the party claiming those protections can "provide reasons for interpreting the state provision differently from the federal provision." (17) As it turns out, New Mexico's amendment rules are unique in that they require all proposed constitutional amendments to be published in both Spanish and English. (18) They also establish more difficult amendment procedures for any proposed amendments affecting other protections for Spanish-speaking residents. (19) In Maso, these provisions clearly supported an argument that New Mexico has a unique constitutional commitment to protecting its Spanish-speaking residents. (20)

Whitehill and Maso illustrate how amendment rules can shed light on constitutional meaning. But they are just the tip of the amendment-creep iceberg. Indeed, amendment rules can assist judges in resolving many other constitutional disputes. Because amendment rules express how a nation or state aspires to modify and maintain its fundamental law, they can provide a window into the "broad norms and basic commitments" underlying the constitutional text. (21) As such, they are a particularly valuable source of constitutional meaning on a variety of constitutional issues. (22) It is not surprising, therefore, that judges have looked to amendment rules to clarify ambiguous constitutional provisions or answer questions that the text does not explicitly address.

In this Article, I argue that using amendment rules to interpret other constitutional provisions is consistent with a familiar form of constitutional argumentation known as structuralism. Pursuant to the structural method, judges ascertain constitutional meaning by drawing inferences from a constitution's overall structure and the relationships between institutions created by the constitution. (23) The structural method plays a significant role in many constitutional cases. (24) It was the cornerstone of Chief Justice Marshall's argument in McCulloch v. Maryland for why Maryland could not tax the federal Bank of the United States. (25) It was also crucial to Chief Justice Roberts's recent opinion holding that the Affordable Care Act's individual mandate exceeded Congress's authority under the Necessary and Proper Clause. (26) In each instance, the Court drew on familiar (but broad) structural concepts, such as federalism, democracy, and the separation of powers, to resolve disputes regarding constitutional meaning. (27)

Amendment creep follows in this same tradition of structural interpretation. When examined through the lens of structural argument, amendment rules often support compelling institutional and substantive inferences. For example, amendment rules that single out certain subjects for more arduous amendment procedures might indicate a "hierarchy" of constitutional values, which can help judges resolve conflicts between competing constitutional norms. (28) Article V, for instance, makes equal suffrage in the Senate effectively impossible to change through formal amendment. (29) This deep entrenchment of equal state representation suggests that the Constitution's core includes strong federalism principles that cannot be completely displaced by a national popular movement. (30)

State...