Responding to Imperfection: The Theory and Practice of Constitutional Amendment.

• Author: Michelman, Frank I.

1. PROLOGUE: ARE WE ALL POSITIVISTS NOW?

   Responding to Imperfection(1) is a collection of essays on the ways of constitutional change in the United States.(2) Correlatively, the book is a collection of views on the figurations of "higher law" in American constitutional thought and argument. "Collection," however, does not do the volume justice, because it mounts a conversation whose sum exceeds its parts. Beyond the merits of any of the selections standing alone, an intriguing interplay among them gives this book a special energy and interest. What follow are some thoughts about that interplay. Reflections of one reader's interests of the moment, these thoughts should not be mistaken for a full account of all that is worth attention in these essays.

   Theoretical legal positivism has an official standard-bearer on Levinson's stage: he is Frederick Schauer. Schauer suggests positivist opinion is unfashionable,(3) but I wonder. As far as I can see, if there is anything most of your standard-issue, fin de siecle American constitutionalists would rather not profess,(4) it is natural law, legal positivism's supposed opposite. Rarely do we claim to be drawing our standards for the identification of valid law from speculative sources --rationality, morality, fundaments of the human condition -- lying fully beyond those supplied by socially created authorities-in-fact. Rarely do we draw them, in other words, strictly and unambiguously, from what theorists sometimes call transcendent, rather than immanent, sources.(5) Justice Hugo Black's excoriation of the "natural-law due process formula"(6) still carries a sting, and it is pretty much the case, I believe, that we are all to some degree positivists now, all immanentists, at least by outward profession.

   Inductive support appears in Imperfection. The book ostensibly focuses on two questions about the American higher law's amenability to change, both of them centering on Article V of the U.S. Constitution.(7) One question is whether Article V is "exclusive" -- whether the several paths to amendment the Article marks out are the only ones by which Americans can arrive at a valid -- or rightful, or legally cognizable -- change in the higher law.(8) The other question is whether Article V is boundlessly inclusive -- whether, so to speak, everything goes under Article V or whether, to the contrary, there are changes that cannot validly be accomplished, in that way or any other.(9)

   One might think these questions would be tools for prying apart the naturalists and the positivists among us. Contentions that the Constitution is amendable by popular, or popularly representative, political action "outside of" the mainly government-driven channels set by Article V(10) must mean to appeal, one might suppose, over the head of the Constitution as we find it to transcendent values of democracy, popular sovereignty, and collective political selfrule. Just as, one might think the idea, for example, of the legal invalidity of a procedurally immaculate Article V repeal of the First Amendment(11) must mean to appeal beyond the extant regime to transcendent values of human dignity or freedom.

   Thus transpositivistically is not how the players in Impresario Levinson's antiformalist contingent (as we may style them) present themselves on stage.(12) With only one arguable exception, they come on as interpreters of the regime-in-force. They offer us readings of the factually-established American way with politics. In form, at least, their speeches are not oracles of transcendent reason or truth, but rather renderings of a historically specific -- American -- legal-cultural object. None of the principal players asserts or evidently believes that it is possible or desirable for renditions of such contestable objects to be wholly uninflected by the renderers' own perceptions of reason and truth. The point, though, is that when it comes to propounding validity criteria for law in the United States, it is not theories but facts -- facts of extant legal-cultural practice, interpretable facts but facts nevertheless -- that remain finally sovereign for all our speakers.(13)

2. MAPPING THE TERRAIN OF DEBATE

   1. Constitutionalism

      Among the countless variety of legal-ordering practices that might prevail in a country, some -- but not all -- are of the kind we call constitutionalist. A practice is constitutionalist, to begin with, only if it hierarchically distinguishes at least two ranks of law: a superordinate constitutional or "higher" law and a subordinate "ordinary" law.(14) The higher law sets conditions of validity for ordinary law; it functions as what H.L.A. Hart calls a rule of recognition.(15)

      If that begins, roughly, to describe what constitutionalism is, then a constitution is, correlatively, a particular, identifiable assemblage of higher-law prescriptions -- be they written, unwritten, or some combination thereof -- subsisting in the practice of a given country at a given time.(16) This constitutional assemblage will certainly contain organizational and procedural prerequisites for valid ordinary lawmaking. Within it one may also find limits on the allowable contents of ordinary law. We need not debate whether such "substantive" limits are an essential feature of any constitutionalist system worthy of the name, or, in other words, whether "constitutionalism" is partly synonymous with "limited government."(17) It is enough for our purposes that such limits have come to be viewed as a part of the essence of American constitutionalism. A constitution, then, contains procedural, and perhaps substantive, preconditions for valid ordinary lawmaking. Is anything more required of it for completeness?

   2. Amendment Rules

      To most of us, it will intuitively seem that a constitution, to be complete, must prescribe the validity conditions not just for ordinary lawmaking, but also for any further higher lawmaking within the subsisting system of governance for which the constitution itself ostensibly supplies the higher law. Why we should think this is a matter bearing investigation. The answer begins, but does not end, in what we usually understand by the idea of a country's being in a legally ordered state. We associate legal ordering with a preponderant sharing by inhabitants of some practical understanding of who, selected by what means or marks and acting by what forms and in what combinations, is imbued with authority to declare "good" law.(18) In the theoretical lingo of legal positivism, whatever indicative content lies within this shared-in-fact understanding is the country's "ultimate rule of recognition" ("URR"), and positivists will seem to most of us, most days, undoubtedly correct in their insistence that legal ordering in a country presupposes the existence of a URR.(19)

      If so, however, then the positivists are equally persuasive that a country's URR is not itself a law, but rather is a practice, "a matter of social fact ... for empirical investigation rather than legal analysis."(20) But then why should we think that it is to a country's constitution -- a law or body of law -- that the population must look for last-ditch answers to legal-validity questions, so that a constitution is to be judged defective if it lacks a specification of the validity conditions for higher lawmaking? Evidently, we think this precisely because our minds, not surprisingly, are on a country whose URR is of the constitutionalist kind, and one mark of that kind of URR -- one mark of the kind of legal-cultural practice that it is -- is to refer all questions about legal authority and validity to a set of rules that themselves have the status and regulative force of law in inhabitants' eyes, having been conventionalized as such in a certain body of high law called a constitution.(21) This, too, is a part of what constitutionalism is in our lives.(22)

      Let us speak, then, of amendment rules, and let us agree on a broad understanding of both of that locution's component terms. "Amendment" means alteration of the higher law, of whatever extent or degree.(23) "Rule" means any interpretable prescription, any prescription extractable from a given and finite corpus juris, such as Americans take the Constitution to be. The class of amendment rules has limiting cases. At one extreme lies the case of total, irrevocable, and absolute entrenchment of extant constitutional content against any change, ever.(24) At the other extreme is the rule that would allow ordinary legislative assemblies to adopt constitutional amendments by the same procedures they use for ordinary lawmaking.(25)

      Most real-world constitutionalism, in this respect typified by American practice and understanding, operates between the extremes -- using amendment rules that are distinct from, and more demanding than, the validity rules for ordinary lawmaking but that do not absolutely and eternally entrench the whole constitution.(26) We would not feel we had proper self-government if everything that mattered in our higher law were irrevocably and permanently placed beyond the people's sovereign reach. Nor would we feel we had real higher law if our amendment rule did not in some palpable degree entrench the rest of the Constitution. Finally, an amendment rule does not really entrench the rest of a constitution, in any specific degree, unless it, itself, is at least relatively entrenched by its own terms.(27) In sum, we denizens of the American legal-cultural practice cannot make do without a constitutionally contained rule for amending the Constitution, which is by the same token a rule for preserving the Constitution against undue change.(28)

   3. Formalism

      An amendment rule, we now easily see, may prescribe in either or both of two dimensions, one procedural and the other substantive. Article V visibly prescribes in both dimensions. It sets out specific procedures for amending the Constitution, and it also contains at least one specific prohibition on...