Popular constitutionalism and relaxing the dead hand: can the people be trusted?

• Author: Pettys, Todd E.

TABLE OF CONTENTS INTRODUCTION I. ORIGINALISM AND THE DEAD-HAND PROBLEM A. Odysseus and the Sirens B. Failed Rationales for Privileging Original Meaning over Contemporary Meaning 1. The Framers Were Wiser and Less Self-Interested than We Are 2. The Constitution's Original Meaning Gives Us the Stability We Need to Govern Ourselves 3. Article V Permits Us to Amend the Constitution if We Are Dissatisfied 4. We Can Amend the Constitution by Means Other than Those Described in Article V if We Are Dissatisfied 5. All Americans--from the Founding Generation to the Present--Form One Transtemporal National Self II. TRUSTING THE PEOPLE A. America's "Dirty Little Secret" and the "Deepest Question of All" B. Reasons to Trust the People's Commitment to Constitutionalism 1. The Centrality of the Founders and the Constitution to Americans' Self-Understanding 2. The Increased Value of Americans' Constitutional Inheritance 3. The Seamlessness of Generational Transitions 4. The Desire for Politicians Driven by Principles, Rather than Merely by Polls 5. The Political Domain's Long-Standing Supervision of "the Constitution Outside the Constitution" CONCLUSION INTRODUCTION

For my part, I believe that the people and their Representatives, two or three centuries hence, will be as honest, as wise, as faithful to themselves, and will understand their rights as well, and be as able to defend them, as the people are at this period. The contrary supposition is absurd.

--Noah Webster (1)

Although Congress and the President occasionally have indicated that they do not feel obliged to accept the federal courts' interpretations of the Constitution, (2) it has been a long time since the United States' commitment to judicial supremacy seemed genuinely in doubt. Citizens and politicians today usually appear content to accept the Supreme Court's claim that "the federal judiciary is supreme in the exposition of the law of the Constitution." (3) Americans have focused their disagreements instead on how courts should arrive at the constitutional interpretations that will bind the country. While originalists stress the primacy of the text's original meaning, (4) for example, nonoriginalists try to identify ways in which judges can discover constitutional meanings beyond those in play at the time of the text's ratification. (5)

In recent years, however, a number of scholars--falling loosely under the banner of "popular constitutionalism"--have skeptically set their sights squarely on the Court's claim that its constitutional interpretations bind the nation. (6) Larry Kramer, (7) Sanford Levinson, (8) Mark Tushnet, (9) Adrian Vermeule, (10) Jeremy Waldron, (11) and others (12) have argued that it is "the People," and not federal judges, who hold the ultimate interpretive authority on disputed constitutional questions. (13) Because sovereignty rests with the nation's citizens, these scholars argue, it is ultimately the task of the citizenry--and not a politically unaccountable judicial elite--to interpret the nation's fundamental law.

In this Article, I defend popular constitutionalism on two important fronts. Both of my arguments build upon concerns regarding the democratic legitimacy of granting the judiciary the ultimate power to resolve disputes concerning the meaning of the many open-ended provisions of the Constitution that are reasonably susceptible to conflicting interpretations. First, I argue that defenders of judicial supremacy still have not offered a satisfying response to the familiar dead-hand objection that plagues many of the interpretive methods that courts ordinarily employ. Second, and most fundamentally, I argue that the American people can be trusted to preserve the distinction between ordinary and fundamental law that constitutionalism requires, and that the American people thus do not need to rely upon politically insulated judges to preserve that distinction for them.

For those encountering popular constitutionalism for the first time, the claim that the American people are the supreme interpretive authority on disputed matters of constitutional law might seem like a difficult pill to swallow. As Mark Tushnet notes, some observers are terrified about what might happen if the courts were stripped of their interpretive supremacy. (14) Larry Alexander and Lawrence Solum, for example, respond to Larry Kramer's version of popular constitutionalism with a shudder, stating that it has "the capacity to inspire dread and make the blood run cold." (15) Indeed, it often seems as if we are hardwired to defer to the courts on questions of constitutional meaning. Surely, we tell ourselves, the ultimate responsibility for interpreting the Constitution should rest with highly intelligent, law-savvy judges, and not with untrained, grubby-handed, ordinary Americans. (16) Although our constitutional system draws its legitimacy from "the consent of the governed," (17) we are disinclined to allow the governed themselves to play the leading role in determining what the Constitution means. So long as courts apply the appropriate methods of constitutional interpretation, this view suggests, we should accept judicial supremacy as a necessary feature of our constitutional system.

Consider, for example, originalism's continued prominence as a method of constitutional interpretation, notwithstanding the attacks consistently leveled against it. (18) Originalist methods owe their widespread use, at least in part, (19) to the apparent appeal of two fundamental claims, both of which are aimed at alleviating concerns about the democratic legitimacy of allowing unelected judges to bind the nation with their interpretations of the Constitution. First, originalists contend that their interpretive methods offer the greatest promise of preventing judges from imposing their personal preferences on the rest of society. (20) Second, they argue that the courts' primary task when interpreting the Constitution is to ensure that government officials obey the supreme will of the sovereign people as expressed in the Constitution's text--a task that originalists contend can be accomplished only if courts enforce the Constitution's original, ratified meaning. (21) The resulting formulation draws a tight connection between originalism and judicial supremacy: The American people have expressed their fundamental commitments in the Constitution, and it is ultimately the job of politically insulated judges to make sure those commitments are honored. (22)

For many years, however, critics of that formulation have questioned originalism's ability to deliver the democratic legitimacy that its proponents promise. Many scholars have argued, for example, that originalism rarely constrains judges who are tempted to decide cases based on their personal preferences. (23) Even if originalism did meaningfully constrain judges, it creates a legitimacy problem of a different sort, reflected in the familiar dead-hand query: Why should people alive today be bound by the values and understandings of generations long dead? (24)

What gave men in the late eighteenth century, who lived in a world vastly different from our own, (25) the right to impose their preferences on all future generations of Americans, unless those later generations could meet the supermajority requirements that the founding generation prescribed for constitutional amendments in Article V? (26) For those generations that do manage to amend the Constitution, what gives them the right to bind future majorities until a supermajority can again be assembled?

Nonoriginalist proponents of judicial supremacy must confront legitimacy challenges of their own. As Andrei Marmor points out, "the more flexible the culture of constitutional interpretation is taken to be, the more power it grants to the courts in determining its content," and thus "the more reason you have to worry about the anti-democratic role of the courts in determining matters of moral [and] political importance in the constitutional domain." (27) Moreover, many of the sources of constitutional meaning that nonoriginalists identify--such as tradition and prior generations' social movements (28)--are themselves largely imposed on the present generation by the dead hand of the past. (29) Faced with that reality, one might conclude that the only way to ensure that Americans today are truly self-governed is to abandon judicial supremacy altogether--which is precisely what popular constitutionalists urge us to do.

Popular constitutionalists do not try to escape the reach of the dead hand entirely. None of these scholars contend, for example, that the nation can simply disregard the Constitution's unambiguous requirements, such as those concerning the age one must be to serve as a Senator, the length of a Representative's term, the congressional supermajority needed to override a presidential veto, and so forth. (30) Popular constitutionalists appear content to presume that if a constitutional provision is not reasonably susceptible to competing interpretations, then the nation should deem itself bound by that provision's plain meaning. (31) But with respect to the open-ended provisions whose meanings are reasonably contestable (such as the frequently litigated provisions of the Bill of Rights and the Fourteenth Amendment), popular constitutionalists insist that "the People," and not the courts, have the ultimate authority to determine what those provisions demand. (32)

The prospect of popular constitutionalism raises provocative issues. One of those issues is largely practical in nature: By what means are the American people expected to exercise their interpretive power? Should the power be exercised by citizens' elected representatives and manifested in the legislation that those representatives enact? Should it be exercised by citizens themselves through direct-democracy mechanisms, such as referendums and initiatives? Is there some other, less formalized way...