Protecting the Originalist Constitution.

• Author: McGinnis, John O.
• Position: Thirty-Seventh Annual Federalist Society Student Symposium

My subject is Article V, the amendment process itself. The capacity of the people to change their fundamental laws surely qualifies as a first principle of constitutionalism. This essay makes three points. First, constitutional amendments are the best way of updating our constitution. The consensus they require is likely to create better improvements than judicial updating that comes from non-originalist approaches to interpreting the constitution. second, unfortunately, constitutional updating by the supreme court has directly interfered with Article V because it incentivizes people to work through the courts rather than through the amendment process. We thus need originalism to make the process work as well as it can. Finally, this essay discusses constitutional amendments to the amendment process itself, both to make it function better as a constraint on the power of congress and to make it easier to amend more generally.

As Michael Rappaport and I describe in great detail in our book, Originalism and the Good Constitution, the most striking feature of the amendment process is its requirement of super-majoritarian consensus to change our fundamental law. (1) Article V requires either two-thirds of Congress or two-thirds of the states to propose an amendment, and then three-quarters of the states, through conventions or legislatures, to ratify an amendment. (2) Supermajoritarian consensus is a good way to make and amend the Constitution.

We can see the virtues of supermajoritarian rules for constitutional amendments and constitution-making by contrasting it with majority rule. (3) Something close to majority rule is generally thought to be the best approach to ordinary legislation, but permitting a mere majority to entrench provisions in our fundamental law would be problematic. (4) First, because entrenched norms cannot be easily changed, controversial amendments can be extremely divisive and partisan. Yet a majority tends to enact exactly those divisive and partisan changes. (5) Supermajority rules happily permit only norms with substantial consensus and bipartisan support to be entrenched. (6) A broad consensus for constitutional amendments maintains legitimacy, allegiance, and even the affection that citizens feel for their fundamental document as it becomes part of their common bond, making them citizens of a single nation. (7)

The long-term nature of entrenchments also makes it less likely that simple majorities will enact desirable amendments. Individuals have a heuristic problem in thinking about the future; they are often disposed to believe the future is going to be just like the past. (8) Stock markets and housing bubbles go up and up until they suddenly do not. Supermajority rules compensate for this deficiency by restricting the agenda of proposed amendments because fewer proposals have a realistic chance at being passed. (9) A restricted agenda encourages a richer stream of information and deliberation about the amendments, improving their quality. (10)

Finally, a strict supermajority rule for amendments improves the quality of entrenchments by helping to create a veil of ignorance (11) because amendments cannot be easily repealed--they have to go through the same Article V process to be repealed. (12) Citizens and legislatures cannot be certain how amendments are going to affect themselves later in life or their children. Hence, they are more likely to consider the long-term public interest than their short-term personal interest when determining whether to support revision. (13)

Consequently, updating the Constitution through the prescribed Article V amendment process is superior to updating it through judicial interpretation because the amendment process requires a national consensus. Updating the Constitution through judicial interpretation, by contrast, gives judges discretion in choosing how our country keeps up with the times. This is problematic for three reasons. First, judicial updating of the Constitution is accomplished by a small number of Supreme Court Justices, whereas constitutional lawmaking and the amendment process require the broader participation of many people across the country. Second, the Supreme Court is drawn from a very narrow class of society--elite lawyers living in Washington, D.C., perhaps the most artificial city in the world, a classic one-company town. (14) And today that narrowness is even more extreme than in the past, as each current Justice has attended one of two law schools, Harvard or Yale. (15) As for geographic diversity, when Justice Scalia was alive they at least hailed from four of the five boroughs of New York City. (16) Finally, constitutional lawmaking is supermajoritarian, while the Supreme...