Amendment creep.

• Author: Marshfield, Jonathan L.
• Position: III. Amendment Creep in Federal Constitutional Interpretation B. Article V and Institutional Arguments Regarding Judicial Review 2. The Inference of Judicial Power to Oversee Congress and the President through Conclusion, with footnotes, p. 247-276

2. The Inference of Judicial Power to Oversee Congress and the President

   In several opinions, justices have also constructed institutional arguments from Article V to support judicial review of federal legislation and executive action. (200) This argument is a corollary of the argument for judicial restraint. That is, if Article V implies that at least some changes should occur exclusively through formal amendment, then attempts by Congress or the president to change the Constitution outside of Article V are illegitimate and should be invalidated by the Court. (201)

   In Reid v. Covert, for example, the Court considered the scope of the treaty power, which is exercised jointly by the executive and the Senate. (202) Pursuant to treaties with Great Britain and Japan, two civilian American citizens were tried abroad before a court martial for crimes they committed outside the United States. (203) The trials complied with the treaties, but did not comply with basic protections enshrined in the Bill of Rights. (204) The government argued that the trials were lawful because the Supremacy Clause states that treaties "shall be the supreme Law of the Land." (205) The Court rejected this argument, in part, because it would effectively permit the president and the Senate to amend the Constitution outside of Article V. The Court stated:

   It would be manifestly contrary to the objectives of those who created the Constitution, as well as those who were responsible for the Bill of Rights--let alone alien to our entire constitutional history and tradition--to construe [the Supremacy Clause] as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions. In effect, such construction would permit amendment of that document in a manner not sanctioned by Article V. The prohibitions of the Constitution were designed to apply to all branches of the National Government and they cannot be nullified by the Executive or by the Executive and the Senate combined. (206) Justice Harlan made an even stronger argument from Article V in support of judicial review. In Oregon v. Mitchell, after discussing Article V's implicit limitations on the judiciary, Justice Harlan emphasized that Article V also restrains Congress. (207) More importantly, Justice Harlan argued that, because Congress is designed to be democratically responsive, it is particularly important that the Court, which is insulated from the electorate, monitor Congress's constitutional compliance. (208) In support of this vision of judicial review, Justice Harlan relied on the structure of Article V's amendment procedures. According to Justice Harlan, Article V's supermajority and state-ratification requirements prove that ordinary "political restraints" are insufficient to control Congress when constitutional issues are at play. (209) Thus, in various contexts, the Court has built structural arguments from Article V to support its review of the constitutionality of congressional and presidential action. (210)

3. The Practical Need for Informal Judicial "Amendment"

   On various occasions, the Court has suggested that its role in deciding constitutional cases is affected by the practical difficulty of formal amendment to the Constitution through Article V. This has occurred most prominently in the Court's doctrine of stare decisis, where the Court has clearly articulated an institutional argument rooted in the practical difficulty associated with amending the Constitution through Article V. This Section first discusses the concept of informal amendment through judicial review and then explores the logic of the Court's arguments from Article V in the context of stare decisis.

   Many scholars have argued that the difficulty of amending the Constitution through Article V has effectively rerouted constitutional change to other institutions, including judicial review by the Supreme Court. (211) Although there are many subtle variations to this argument, the basic logic is rather straightforward. (212) Changing circumstances and evolving social norms make regular constitutional change necessary. (213) Because Article V is "too cumbersome and erratic to serve as the sole vehicle for constitutional development in a complex and rapidly changing society," (214) political actors find alternatives for effectuating necessary constitutional change. These "informal" methods of constitutional change are complex and push constitutional change "off the books." (215) Informal amendment can occur, therefore, when the Court issues a "transformative" ruling that "self-consciously repudiate^] preexisting doctrinal premises and announce[s] new principles that redefine the American people's constitutional identity," (216) and other branches effectively ratify that ruling "through acquiesce or approval." (217)

   These theories of "informal amendment" probe at the relationship between Article V and the Court's interpretation of the Constitution in both descriptive and normative ways. Descriptively, they attempt to explain why the Court has sometimes engaged in "creative" interpretation of the constitutional text. (218) Normatively, they suggest that the difficulty of formal amendment justifies these "creative" interpretations because necessary constitutional change could not otherwise occur, and there are benefits to informal amendment processes. (219)

   What is striking about these scholarly theories is that the Court has been very reluctant to acknowledge them. That is, despite rulings that have effectuated significant changes in constitutional norms, the Court has generally not relied on the difficulty of formal amendment to justify its own "transformative" rulings. (220) Whatever influence the ability (or inability) to amend through Article V had on these rulings, it is below the surface of the Court's opinions. In fact, the tone of the Court's stated justifications is to show continuity with past constitutional norms, not transformation. (221) Thus, although these rulings might, in fact, be examples of meaningful informal amendment, they are not examples of explicit amendment-based arguments.

   There is one exception, however: the Court has explicitly cited the difficulty of formal amendment through Article V to justify overruling its own constitutional precedents more freely than its own statutory precedents. (222) Indeed, the Court has explicitly developed the doctrine of stare decisis in constitutional cases around its belief that Article V makes the Constitution extraordinarily difficult to amend. (223) This argument was famously set out by Justice Brandeis in his dissent in Burnet v. Coronado Oil & Gas:

   Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right. This is commonly true even where the error is a matter of serious concern, provided correction can be had by legislation. But in cases involving the Federal Constitution, where correction through legislative action is practically impossible, this Court has often overruled its earlier decisions. The Court bows to the lessons of experience and the force of better reasoning, recognizing that the process of trial and error, so fruitful in the physical sciences, is appropriate also in the judicial function.... In cases involving the Federal Constitution the position of this Court is unlike that of the highest court of England, where the policy of stare decisis was formulated and is strictly applied to all classes of cases. Parliament is free to correct any judicial error; and the remedy may be promptly invoked. (224) Justice Brandeis's primary concern seems to be correction of judicial error through constitutional amendment. However, in a subsequent opinion, Justice Douglas hinted at the need for judicial updating of constitutional norms as another rationale for flexibility in applying stare decisis. (225) Taken together, the logic of this amendment-based argument is clear: the Court must be willing to overturn its own constitutional rulings when it becomes evident that those rulings are in error or have become outdated because Article V makes it "practically impossible" for constitutional rulings to be corrected or updated through formal amendment. (226)

   The Court has explicitly followed this reasoning in subsequent cases overruling constitutional precedents. (227) In Agostini v. Felton, (228) s for example, the Court overruled its prior decisions in Aguilar v. Felton (229) and School District of Grand Rapids v. Ball, (230) which, together, held that the establishment clause "prohibited federal funding of a program providing remedial education to sectarian schools on a neutral basis with other schools." (231) In overruling those prior constitutional decisions, Justice O'Connor stated that stare decisis "is at its weakest when we interpret the Constitution because our interpretation can be altered only by constitutional amendment or by overruling our prior decisions." (232)

   Thus, the Court's doctrine of constitutional stare decisis provides another example of amendment creep. The Court has firmly embedded Article V's stringent amendment requirements and record of use to craft a doctrine that is responsive to the realities of the constitutional structure.

   3. Article V and Freedom of Expression and Association

      In a few cases, the Court has relied on Article V to demonstrate that the Constitution as a whole is not inimical to views that would support changing or even revolutionizing government. (233) As the argument goes, because Article V does not place any limitations on the substance of changes to the Constitution, Article V supports the notion that the Constitution protects contrarian views about government. Justice Douglas stated the argument this way:

      If the Federal Constitution is our guide, a person who might wish to "alter" our form of government may not be cast into the...