Scalia and Ginsburg on Constitutional Amendments

There is an interesting short piece on Justices Scalia and Ginsburg and their views of constitutional amendments.  This short news story touches upon a variety of issues that I have discussed at this blog and in scholarship.

Scalia writes “I certainly would not want a constitutional convention,” Scalia told moderator Marvin Kalb. “Whoa! Who knows what would come out of it?” But, he explained, he once calculated what percentage of the population could prevent an amendment to the Constitution and found it was less than 2 percent. “It ought to be hard, but not that hard,” Scalia said.

The fear of a constitutional convention leading to undesirable amendments has often been voiced.  One way around this is for states to apply for a convention limited to a certain subject, but many have argued that such a convention is unconstitutional.  I disagree.

Scalia argues that less than 2 percent of the country could prevent an amendment to the Constitution.  Presumably, he means that the least populous 13 states could block the ratification of an amendment.  It could happen, but it is not likely.  The expected population necessary to block an amendment is just above 25 percent of the population.  The smaller percentage Scalia mentions could block an amendment only if the least populous states opposed the amendment.  But there is little reason to believe that scenario would occur.

The failure of the push to add the equal rights amendment, Ginsburg noted, was an example of how difficult the amending process is.

It is often argued that the failure of the ERA to pass shows the amendment process is too strict.  But I am skeptical.  I believe either the ERA or an amendment that was more carefully drafted would have passed except for two reasons both relating to nonoriginalism.  First, the Court engaged in judicial updating of the Constitution to start protecting women under the Equal Protection Clause and therefore there was less reason to pass the amendment, since women were already protected.  Second, the Warren Court had been regularly engaging in nonoriginalist interpretation and therefore people believed the Court would use the amendment to require unpopular results, such as same sex bathrooms or women in combat, even though defenders of the amendment claimed it did not have that meaning.  See here and here

Mike Rappaport

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review.  His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

About the Author

Comments

  1. gabe says

    Mike:

    Read your referenced essay a good while back. Nice work and AGREED! with respect to limiting the debates.
    However, one must still recognize that there is a potential for significant mischief when one reads of Justice Stevens “recommendations” for changing the constitution. I can picture it now: “Well, boyos, it just a minor change – only five words – and it is a more modern approach to the issue, isn’t it?”
    How many other suggestions will have to be dealt with?
    Gives one cause for concern.
    I can even imagine George Soros and Steyer, etc (Oops, can’t forget Nanny Mike Bloomberg, can we) dumping $50 million or so on advertising campaigns to promote limiting political contributions and restrictions on gun ownership.
    This could be fun!!!
    take care
    gabe

  2. Scott Amorian says

    Two percent? When did the state legislators start comprising eight percent of the US population? All that is necessary to block an amendment is for some person or group to bribe or extort enough state legislators who might otherwise approve an amendment. Is there a group with enough power to do something like that? Perhaps the leadership of the party duopoly has enough of power to do such a thing. There could be wealthy and powerful financial interests that could sway enough state legislators to disapprove of an amendment. The number of people required to stop a proposed amendment is very small, and therefore, very corruptible.

    In one of your earlier writings an Article V, Mike, you mentioned just briefly the value of pre-convention of some kind to help set the stage for the actual convention. I believe that the topic of the pre-convention was understated. I also believe that a group of publicly elected local judges, chosen at random, would be ideal for forming such a committee. They are trusted by the public. One of the cornerstones of our democracy is our jury system. We trust that selecting jury members at random helps reduce bias. A pre-convention would be useful for laying out what needs to be changed and the processes for making it.

    I do not understand why people think that a limited convention is unconstitutional. The whole point of putting the COS into the Constitution was to ensure that the states could get specific desired amendments made in the event that the federal legislature was recalcitrant and refused to do so. The COS assumes that Congress is antagonistic to a proposed amendment, so a COS begins with the idea in mind that Congress is against a change desired by the people as represented by their states. To address that, planning must be done by some persons other than members of Congress, and those plans should include plans to prevent attempts by members of the federal government to interfere with the process.

    In short, the Constitution belongs to “we the people,” not the parties, not Congress, not the President, and not the Court. It is ours to do with as we wish. With respect to the sovereign people, the writings in Article V regarding the COS are not laws, but conventions. We are the sovereign. The Constitution is an extension of the right and will of the sovereign people to form and keep a government, and the government is an extension of our Constitution.

    The Constitution does not define the people. It has no authority to do so. We define it. If we ever lose that power we are no longer a sovereign people, and whoever has taken from us the power to define our government is the true sovereign.

    That is why the Constitution can never have authority over the citizens, only the government. Only the citizens, or representative agents loyal to the citizens and no other, can have the power to amend. How loyal to us are our representatives; and how loyal are they to others such as party or financial interests?

    Through legislation enacted by representative agents properly loyal to us, who act in accordance to the writing of the Constitution, we can impose directives and restrictions on ourselves for the purposes of our safety and our greater happiness. That is proper. Those are the primary roles of government. But what if the agents are no longer loyal to we the sovereign people?

    The Constitution creates a fine balance that can be tipped by much less than Scalia’s two percent.

    The Constitution gives structure to a government. Through that structure, we create laws for ourselves. The breadth of the structure defines our just liberties.

    When government powers increase, legislation increases and the people lose liberty. Reduce the powers of government and legislation becomes less, and the people gain liberty.

    When there is no practical feedback mechanism through which an overly regulated people can restore the balance and negate excess government, a state of tyranny is in effect. We must always have the right power to reign in our government. If some construction in the design of government prevents us from being able to reign in our government, the design, not the right of the people to redress our government, is at fault. If some design in Article V of the Constitution seems to limit the right of the people to make necessary amendments to our Constitution, the design is wrong. Or, to play the Constitutional word game, the Ninth Amendment requires the government to recognize that the people have the right to exercise practical and effective control over our government, and any wording of Article V that interferes with that right can be duly and properly ignored.

    The question of whether Article V permits us to exercise our right power by doing that which is necessary is not important. The fact is we have the right to do what is necessary reign in our out of control government. If we can do it while keeping Article V intact, that would be desirable. But it is not necessary. If a limited convention is necessary for us to exercise our right to control our government, we can have a limited convention.

    If the Court insists that we do not have that authority, the Court can be ignored. The purpose of the amendment could be to reign in an out of control Court. How can an out of control Court have the authority to deny us our right to take away its unacceptable power? The Court is not authoritative in this circumstance. The people are.

    I believe that an unlimited convention would not produce any great harm because, as Ginsburg reminds us, little or nothing would come of it. The proposals would be unfocused so they would be weird and few people would support them. Scalia reminds us that, right or wrong, many people believe that an unlimited convention would be a disaster so it is a dead end for political reasons, which leaves us with the limited convention as the only alternative. A limited convention is necessary, and being necessary for the execution of our right, it is proper.

    Your pre-convention is necessary because the limits of the convention must be defined before the convention is called. There are various mechanisms that you have written about here at LLS and the I have written about elsewhere that would keep the convention within its scope; the pre-convention would have to set things up correctly. It can be done if there is the political will to make it happen.

  3. gabe says

    Scott:
    Good post!

    “The COS assumes that Congress is antagonistic to a proposed amendment, so a COS begins with the idea in mind that Congress is against a change desired by the people as represented by their states.” You are absolutely right about that. The Congress has historically been opposed to COS with none ever having been approved by the congress. Can anyone believe that our August Leaders would be any more receptive to a COS at this time. doubtful at best.
    I can imagine the Court’s reception / slash review of an amendment which clearly defines and limits their “supremacy.”
    What would they do were we to provide a structural remedy to their policy making excursions and delimited the areas subject to their “review”

    Pre-convention or not, there would be much contentiousness in both the Courts and Legislature.
    Can you imagine the court declaring a Constitutional amendment “unconstitutional”
    oops, I forgot, that has already been tried by the Michigan Supreme court and the Washington State supreme Court.
    Perhaps, Shakespeare was wrong – it may be the Judges that are first on the list.

    • Scott Amorian says

      The judges first, that’s funny. I think the judges would somehow find a way to put the executioners heads on the block first. Perhaps they could justify doing so by calling it an execution tax! ;)

      I’ve studied the COS a bit and I think it would be a good idea to have one sometime just to demonstrate that yes in fact the government does belong to “we the people.” But a COS could be a disaster for reasons not generally mentioned. A COS could be seen as a broad public condemnation of the American government by the American people. It is a vote of “no confidence” in our own government. That would have HUGE negative repercussions both at home and abroad, so it would introduce a potential for great harms. That is why I believe that the least harmful and preferred approach to fixing constitutional problems is through a political party dedicated to a specific set of reforms, that works through the Congressional method, and uses the COS as an insurance policy to ensure that members of the government do not fight the action.

      • gabe says

        Well after all, if the separated cranium is then transported across state lines, it is COMMERCE, isn’t it – so i suppose they can tax it!

        You make some interesting points. Having a party dedicated to restoring liberty would be fine – where is it, however. I simply do not see it on the horizon.
        Instead I see the same venal. self aggrandizing actors rushing to receive praise for giving away their neighbors goods (both parties to different extents) and or avoiding blame for unpopular decisions.
        Clearly, this is not typical of the Republican virtue of which the Founders spoke. Presently, it appears that all must be sacrificed on the altar of re-election – conviction, culture, morality, etc all fall before the imperative of another term in the Grand Capitol while the TV cameras record and reflect each utterance and plastic smile.

        I suppose I would prefer to take my chances with the people – given certain safeguards.

        take care
        and i promise not to do anything that warrants a tax!!!
        gabe

  4. Kevin R. Hardwick says

    Mike,

    The issue is not whether or not it is constitutional to put limits on a constitutional convention. After all, by the standards of strict constutional law, the Philadelphia Convention vastly exceeded its authority. Rather, the issue is whether or not a modern convention successfully could restrain itself from exceeding its authority–and were it to do so, how would the states, the Federal Government, and the American people, respond. In 1787, the widespread apprehension of national crisis gave license to what the Philadelphia Convention did. But even so, the question of the legality of their action was a major argument against ratification in several of the state ratifying conventions. Today, there is sufficient popular perception that our national government is broken that there is, in my view and for what that is worth, adequate reason to fear a run away convention. I thus agree with Scalia that calling a convention, even a purportedly limited one, one be imprudent–and this whether or not one can argue that a limited convention is constitutional. Whether or not it is legally permissable, it is politically unwise.

    • gabe says

      Kevin:

      I share your concern about a runaway convention. One, of course, has no way of knowing if any structure or mechanism can be deployed to prevent this from happening.
      Given the stridency of our porcine friend on the court’s dissent in Schuette v Coalition… and using that as an indicator of the factional sentiments prevalent amongst the citizenry, I can envision the COS become somewhat “unwieldy.”
      However, to do nothing, I think, denies the “sheer necessity of the thing” and continues to expose us to a polity turned upon itself. Unwise, perhaps, but we may be better served in the attempt rather than in the successful execution of the thing.

      Just a thought.

      BTW: Have just started the Robertson book on Original compromise. Promises to be quite good. Again, thank you for the recommendation for this common sense approach to understanding the constitution’s debates / compromises.

      take care
      gabe

  5. says

    I was most interested to see Scalia say this. For some degree of a bipartisan embrace of originalism to occur, which is just about the only thing that will save our republic, originalists must acknowledge that criticisms about the difficulty of amending the Const. have merit. They must meet potential moderate and liberal converts to originalism that far. Jefferson had a point about one generation binding another. Progressives like Herbert Croly had a point about the Constitution becoming too difficult to change. TJ and Croly deserved to lose the arguments they did lose on this issue, but we must admit that their arguments did point to a certain flaw in the American system. For the last fifty years, we’ve been in a situation where the reverence Madison wanted the people to have for the Const. has been partly translated into submissive attitude toward’s the Court’s presumed authority to develop the Const. as it so chooses, the ugliness of which was on full display in certain shocking statements in Casey. We have to force the American people to see and accept THEIR responsibility for Const. development, and to do that, we have to make it easier to amend. Amend Art. V to reduce the needed numbers for amendment to 55% of Congress, 66% of the states. Call it the “responsibility amendment.” A risk? Yes. But again, if there’s no bipartisan embrace of originalism, then the republic falls, unless of course the Republicans win all the key elections for the next 40 years. The public has got to be awakened from its slumber on Const. issues. My full argument for the responsibility amendment, which dismisses all this Mark Levin “convention” talk as skirting the key issue, is here: http://www.firstthings.com/blogs/firstthoughts/2013/08/mark-levin-meet-herbert-croly/

  6. gabe says

    Carl:

    quite right!

    “For the last fifty years, we’ve been in a situation where the reverence Madison wanted the people to have for the Const. has been partly translated into submissive attitude toward’s the Court’s presumed authority to develop the Const. as it so chooses…”

    For a fuller view of how this came to be, you might want to look at Keith Whittington’s excellent book on Judicial Supremacy, ” Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History.” A very interesting read and one that fairly disperses responsibility for this state of affairs amongst the three branches of government.

    • gabe says

      Carl:

      just read your piece at Pomocon (is it still called that?) and find that i can not agree. The purpose of the Amendment process, indeed of the entire constitutional structure, was that it should be difficult, in fact quite difficult, to change basic constituent law.

      Let us just say that this is the Burkean element in our constitutional structure. In a very real sense, the Framers created a government structure that was a combination of Paine (the popularly elected House, responsive in a timely fashion to the people) and a Burkean Senate (elected by the State Legislatures and intended to restrain the excesses of democracy while advancing / protecting state interests). This was the delicate balance but it is clear the intent was to “slow” the rate of change

      While you are not advocating simple majority rule, you are getting close to it and that was a danger that was recognized by the Framers. Thus, they organized a government such that it would be difficult to alter or change. This is even more important for the basic law of the land. Shall we rewrite the Bill of rights with every shift in public opinion? shall we accept as an example the “simple” change advocated by former Justice Stevens (it is ONLY five words after all) which dramatically changes the protections afforded under the 2nd amendment when after the next gun-related horror, the public and our esteemed Legislators, pandering for votes and good media face time, decide to accept Stevens’ “minimal change.

      No – THIS SHOULD BE TOUGH!

      As much as I would like to see changes made (in particular with Judicial policymaking) I would prefer that such changes be of such popular acceptance that it is absolutely clear that it is the voice of the people.
      I would, however, suggest that we make it harder for the Congress to avoid accepting the call from the States for a Convention of the States.
      In short, if the people are too slovenly and submissive to concern themselves with their liberty, then perhaps we are no longer deserving of it.

      How is that for being “politically depressed.”

      take care
      gabe

  7. Scott Amorian says

    I want to make just one more quick point about the appropriateness of the limited convention. Not only is a limited convention legal, practical and advisable, it is absolutely necessary.

    The problem with the open convention is that the public will not support it. How can someone support something if they don’t know what it is? That would be a political absurdity. Very few people would support a convention that could do just about anything to the Constitution. Certainly not enough to support something so dramatic as an amendment convention.

    The easiest way to remove the state method of amendment from the Constitution would be to require an open convention. If I were a political shill trying to steal the sovereignty of the people I would require that the COS absolutely must be open. That would end “we the people” as sovereign, and the party oligarchy would become absolute rulers over the land. No, thank you!

    Because the limited convention is absolutely necessary for the people to exercise our right to rule, it is absolutely correct in principle.

    The problem with setting up the convention as a limited one is a technical matter, not an impossibility. Should I lie down in the face of difficulty like a meek dog waiting for whipping? Should I believe in self-fulfilling prophecies of inevitable doom? Hell, no! Imagine if the soldiers landing at Normandy thought that way. Or the marines at Iwo Jima. Or the soldiers at Valley Forge.

    The limited convention is proper. And it can be organized in a way that is functional. All it takes is a little backbone, a bucketload of elbow grease, and a handful of sensible people willing to make the effort.

    But the preferred way to amend today is still through a dedicated political party working through the Congressional method and working in concert with a jury of knowledgeable and politically neutral persons, using a predefined COS as a big stick in case government is recalcitrant.

    • says

      Good points, Gabe. And a revival of the stand-alone pomocon is around the bend, FYI. I admit my “responsibility amendment” entails a real element of risk. But think about it, using one example–are the American Dems, liberals, and lofos so depraved and devoid of sense that, in the face of what would likely be massive rallies to defend the Second Amendment by their fellow cits, there would be enough of them ready to go with Stevens-like emasculation of it to support legislative majorities in TWO-THIRDS of the states? And again I ask, if any amendments from a conservative perspective really are needed, as Mark Levin argues, musn’t we admit that there is NO WAY to get any of them with the three-fourths requirement in place?

      BTW, I put the number for Congress at 55% knowing full well it would likely be bargained up to 60%. I suppose I could even be somewhat satisfied by taking 75% (for the states) down to a mere 70%. No number is magical–but any change that tells the populace that they will now be expected to take more responsibility for their Constitution’s development, and that signals (as the otherwise pointless COS idea does) that things CANNOT go on as they have without real peril to the entire constitutional order, is worth pursuing.

      Besides, Scalia’s with me! What more do I need to say? ;)

      • gabe says

        Well if my Italian cohort is with you, then let’s do it!

        I will keep my eyes open for the standalone Pomocon.
        I do miss it.

        take care
        gabe

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