Constitutional Amendments – Once Again

I have written several posts on the constitutional amendment process, but I cannot let Eric Posner’s new piece for Slate magazine pass without comment. Eric’s piece is an excellent example of the conventional wisdom that the constitutional amendment process is too difficult – a wisdom that I believe is seriously mistaken.

Eric writes that “any proposal to amend the Constitution is idle because it’s effectively impossible” – because it is too difficult to amend the Constitution. But as I have argued before and with John McGinnis, the main reasons we do not see constitutional amendments are due to nonoriginalism.  These reasons include:

1. It takes a consensus to amend the Constitution, and that consensus takes time to develop. But nonoriginalist courts judicially update the Constitution before that consensus has enough time to develop.

2. Some amendments are attractive only if the Court can be trusted to enforce them as written. But if the Court is nonoriginalist, then people may not trust the Court to enforce the amendments and therefore may not want to give the Court more power.

3. Since constitutional amendments are hard to pass, interest groups will often seek alternatives that are easier to achieve, such as packing the courts with people who will rewrite the Constitution to further the group’s vision. Once again, this will only happen if nonoriginalism is allowed.

4. Constitutional amendments often require compromises in order to secure a consensus. But if there are alternative mechanisms, such as judicial updating, interest groups will choose not to compromise and instead will seek to have judges appointed who share their vision.

Thus, Eric has the matter in reverse. It is not, as he argues, that “Because Article V is a dead letter, people must find different ways to change the Constitution.” Instead, it is because people have found other ways to change the Constitution, that Article V is a dead letter.

Eric notes that it is easier to amend the Constitution in other countries, including in Western Europe. That is true, but that does not mean that those countries are correct. Moreover, the situation is more complicated than Eric suggests.  While he notes that in Germany an amendment requires a two thirds majority in each House, he fails to mention that portions of the German Constitution are formally unamendable.

Finally, Eric notes that the country has grown in population, in states, and in federal legislators. True enough, but many significant amendments were passed early in the 20th century, including the Income Tax, Direct Election of Senators, Prohibition, Women’s Right to Vote, and Prohibition Repeal, when the country was quite large.

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).

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  1. gabe says


    Agree with all of the above.
    Yet, one must ask, did the Founders simply make it too hard to amend the Constitution? Their aim, of course, was to make it difficult to alter our basic law. This, to my mind, was quite sensible.
    However, as honorable men are often wont to do, they may have not allowed for the lack of virtue in their successors believing perhaps that no political actor would be as venal, self aggrandizing, etc as they have turned out to be. Surely they did not see that among their contemporaries (clearly not as pronounced as today)
    The consequence of this ‘oversight may very well be what you describe in your writings as well as what Keith Whittington describes – let the Court determine what our constituent law is. and since Art.V process must go through the very same political actors, it is highly unlikely that anything will come of it and we will be once left left to the devices / artifices of “clever” political actors. In any event since it appears that both right and left are willing to let the Court re-write the Constitution, so long as it suits their ends, we are up the ole’ creek – and the paddles are riddled with wormholes.

  2. says

    Can anyone identify an abeyant amendment that our republic is deficient for not having adopted? Is the imperative to expand government powers or to protect liberties? A written constitution obviously has a purpose, but one short of necessity; the same is presumptively true of amendments. A written constitution is most useful as a simultaneous check on the cold tyranny of government and the hot passion of the mob. A constitution, properly considered does not create rights or confer powers. Rather it documents the relationship between the government and the governed. It memorializes the consent of the former and the duties of the latter. In this, our Constitution seems to perform fairly well. The burden is on those who would change it to show how the relationships, institutions, and values described in our present Constitution do not reflect the relationship between the American people and their government.

    • Kevin R. Hardwick says

      Since one important species of right is explicit prohibition on what kinds of laws governments lawfully can enact, and since one of the most important ways such prohibitions are established is via constitutions, its hard to see how at least some constitutions do not confer rights. So the claim that constitutions do not confer rights is incorrect. Some manifestly do.

      Similarly, since constitutions by definition establish frames of government, and since part of what it means to do so is to confer powers to enact and enforce at least some kinds of law, the claim that constitutions do not confer powers strikes me as wrong.

      For my understanding of just what it is that constitutions do, I have relied on the scholarship of Donald Lutz, who I take to be reasonably authoritative on the issue.

      • z9z99 says

        Since one important species of right is explicit prohibition on what kinds of laws governments lawfully can enact

        I do not agree with this. Prohibitions on governments are not “species of rights.” They are safeguards against infringements, not rights themselves. I do not accept your premise, so I disagree that Constitutions grant rights.

        I also disagree with your second paragraph, and think that you did not understand my premise. (As always, I will assume the fault is mine for not articulating it clearly.) A constitution does not confer powers. There are conditions precedent to the validity and effectiveness of a constitution (your comment below seems to recognize this fact with respect to regimes; I would suggest a similar principle applies to the populace). It is these conditions, for better or worse, that confer powers, not the fact that they are recorded in a document. Powers that cannot be effectively exercised by a government (e.g. eliminating poverty) can be constitutionalized, but not conferred. There is a reason why prohibition, even though incorporated into the Constitution, was a failure. A written constitution does not confer powers any more than a written contract confers agreement.

        • Kevin R. Hardwick says

          By definition a negative right is a limitation on government. So long as ww stipulate that negative rights are not really rights, we are in agreement. But I don’t like the stipulation, since the notion of negative rights is central to the way we talk about what rights are and how they developed historically.

          Don’t assume that the fault is yours! I am entirely capable of misreading you, although I hope it is evident that if I do it is not out of malice.

          We may, as you indicate, be talking past each other with regard to conferring powers. A constitution, like any thing written, and really like ideas more broadly, is just words on a piece of paper until it motivates people to act (or not to act). So in that sense, a constritution is only binding if large numbers of people choose to submit to its strictures. So legitimacy plays an important role here.

          But ideas do have power–and in the case of constitutions, they can result in institututional forms that exercise power.

          I am not sure if that leaves us in agreement or not. Thoughts?

          • Kevin R. Hardwick says

            “A constitution, like any thing written, and really like ideas more broadly, is just words on a piece of paper until it motivates people to act (or not to act). ”

            Not an especially elegantly framed thought. Apologies!

            At one level the constitution is just an elegantly interlocking system of ideas. By themselves, ideas are in inert. Until they act on a person’s will, they have little real world effect.

            But once people affirm the institutional structure created by a constitution–the frame of government–then they most definitely confer power. I think we can likely agree that the term Madison reserved for Bills of Rights–“parchment barriers”–applies more generally to constitutions. Without legitimacy, constitutions are parchment barriers.

            But how much legitimacy? One terrifying aspect of modernity is that unlike the 18th century US state, modern states do not need popular consent effectively to exercise power. Even in the US, the police power of the state has grown enormously from the 1920s forward. Today, its nice if the constitution has legitimacy among the larger populace, but absolutely critical that it guide the actions of those among the subset of the populace who exercise police power (broadly construed).

            Consider the case of a related state power–the military power. When the constitution was first ratified, and for many decades after, the military power was no real threat to the state. That is no longer true today–in theory, today, the military has the capacity to overthrow the state.

            That is however, a pretty far-fetched thought, not because the military can not pull it off, but rather because those men and women who exercise its power would almost certainly refuse to do it. This is especially the case for those US officers trained in the service academies–because their culture is very much one of constitutional integrity, we can safely have a powerful standing army in time of peace.

          • z9z99 says

            I agree with you about legitimacy, only moreso. I think that if we have a dispute it is about how legitimacy is conceived. I can see the two of us tacitly referring to concepts that I will distinguish as “primary legitimacy” and “ongoing legitimacy,” or “static legitimacy” and “dynamic legitimacy” or “foundational legitimacy” and “functional legitimacy,” etc.

            Your argument seems to me to be quite rational and correct, that a Constitution requires ongoing legitimacy, that after it is adopted it be perceived as legitimate, and continue to be so. When you say

            But once people affirm the institutional structure created by a constitution

            I do not think you are wrong, but I do believe that this only part of the issue. I would say that once people have assented to an institutional structure, then they can draft a Constitution.

            My point in raising the issue is to assert that what I consider “primary legitimacy” derives from more basic determinants of human conduct; values, mores, traditions and such, rather than political movements or cultural vanities. These latter forces are however are the vehicles through which ongoing legitimacy is maintained, and crucially, how it is lost.

          • Kevin R. Hardwick says

            Thanks–your last was very useful. The distinctions you draw within the concept of legitimacy are worth development–are they yours, or do they reflect ideas developed elsewhere? Anything you can suggest for me to read?

            Is there a better way to address you than “Z9z99″? Not wishing to pry into your privacy, but I find using your handle just a little creepy, and also somewhat disrespectful. It connotes too much of a serial number.


    • gabe says


      Interesting argument, to be sure!
      “Rather it documents the relationship between the government and the governed. It memorializes the consent of the former and the duties of the latter.”
      Do you not have the latter / former dichotomy reversed here?

      “A constitution, properly considered does not create rights or confer powers.”
      I suppose this depends upon one’s perspective. If a positivist, you may indeed argue that such charters certainly do create rights and / or confer powers. If closer to a natural rights perspective, you may argue otherwise. However, it is clear that the courts have indeed created both rights and powers with their practice of (what I term)” juris-lation” which is the process of creating policy out of interpretative procedures. Some have argued that this is only proper as the Amendment process is too cumbersome. I am not amongst that group.
      Consequently, and while it is true that there may not be a large number of abeyant amendments that would truly matter, it is not improbable that some could be developed and introduced that would be of significant benefit to the regime (in whatever state one finds it).
      Perhaps, an amendment that clearly limits the Administrative State and its ever growing power. See today’s headlines on the abuse of Civil Forfeiture activity by state and federal authorities as just one example. Perhaps, another would be on reducing the “Supremacy of the Black Robes” and compelling the other branches of government to finally exercise its own constitutional review powers.
      I am sure that many readers may add to this simple list – yet, it seems apparent that the current process does not provide one with a sense of optimism!
      take care

      • z9z99 says


        Do you not have the latter / former dichotomy reversed here?

        I don’t think so. How many of the world’s constitutions guarantee freedom of religion?


        • gabe says


          Ok, I am thinking I failed to take into account your preceding sentence.

          But I would be interested in having your thoughts on the need for any amendments that would be appropriate for correcting / defending against “new” tyrannies arising from whatever causes (congressional cowardice, judicial overreach, etc). Surely, our current path is not very hopeful.

          take care

          • z9z99 says

            No, actually you were right in the first place. It should be consent of the governed and duties of the government. The fact that the perspective can be flipped highlights that a constitution requires a reciprocal understanding between the government and governed that is necessary for a constitution to have any meaning. Cosmetic constitutions, as are found in “Democratic People’s Republics” that guarantee human rights are a case in point. The understanding between the government and governed is different, and would be differen,t even if such rat holes were to adopt the U.S. Constitution word for word. Same is true of the kleptocracies and gangster governments that have constitutions for the same reason Bill Clinton has a wedding band.

            At the moment I am suspicious of amendments, altough I am open to persuasion. I think there is some wishful thinking among consertvatives and libertarians that putting something in the constitution somehow relieves some of the burden of vigilance and principled activism that a free society requires. For instance I personally think that our Constitution already forbids civil forfeiture without trial. I believe that federal criminal prosecutions often violate the prohibition against double jeopardy. I think that judicially perceived penumbras are more often than not sophistry and post hoc rationalization. More important people that me obviously disagree. As long as people put up with this crap, I don’t think the wording of the Constitution will have anything more than a fleeting impact.

            I want the Constitution to reflect principle, not fashion. Compare the bloat and complexity of state constitutions with that of the U. S. Constitution. I would hate for the Constitution to contain the words “Oprah” or “microagression,” or even pleasant sounding but problematic vaguaries like “health care.”

            So to answer your question, I do agree that the administrative state unbalances the working of government in favor of the executive, and to the detriment, not just of the legislative and judicial, but of the people. Before I amend the Constitution though, I would like to see the people and their representatives address this (a prerequisite to meaningful constitutional amendment in any case) by increasing the accountability of the executive by 1.) changing the Inspector general statute so that IGs can only be removed, like judges, with legislative approval; 2.) changing the Administrative Procedures Act to abrogate Chevron deference, 3.) limiting prosecutorial immunity for agency enforcement actions, and 4.) taking away the SWAT teams from the nerd agencies like the Department of Education and the EPA. Make them rely on cooperation with local law enforcement or the Marshal’s service.

          • gabe says


            OK we too are in agreement as my interest in an amendment as indicated above is based upon, perhaps, a somewhat more fatalistic conception of the peoples willingness / ability to take effective action – in short, I fear we may never awaken from our slumber.

            It is, however, as you suggest, far preferable to make corrections without recourse to any further alterations of our basic constituent law.

            I most certainly agree with the SWAT provision and have written my congressman about this. To consider writing to my US Senators would only induce another bout of “inquietude” as they are beyond “statist.”

            take care

  3. Kevin R. Hardwick says

    One of the more interesting implications of Professor Rappaports arguments, here and elsewhere, is that good liberal constitutions ought to fit the regime that they exist to limit. If the regime changes sufficiently, originalism (at least as I understand it) suggests that the constitution should not be stretched in the fashion suggested by legal pragmatism to adapt. Rather, the existing constitution should be amended to fit the new circumstances of the extant regime.

    If the extant regime today is, as Morton Keller terms it, bureaucratic and populist, then one possible liberal response is to diagnose the potential for tyranny in such a regime and adopt appropriate constitutional checks to fit it.

    None of the suggested amendments I have seen bandied about in recent years even tries to do this.

  4. says

    “(O)ne possible … response is to diagnose the potential for tyranny in such a regime and adopt appropriate constitutional checks to fit it.
    None of the suggested amendments I have seen bandied about in recent years even tries to do this.”
    Kevin’s last two sentences lead us to the real problem – not the amendment process, but the “Constitutional Check(s)” of “tyranny in such a regime”
    Unfortunately, the greatest tyranny has come from two quarters, the federal justices, and the Executive Branch. The liberal Congress’… “abdication of the wide-ranging self-defensive tools members of Congress already possess but refuse to use … Impeachment is the A-bomb of weapons…”. 1.
    1. Greg Weiner, May 8, 2014, Toward a Practice of Bodycheck Constitutionalism, Liberty Law blog.
    Respectfully, John

    • gabe says

      John / Kevin:

      Absolutely correct with respect to tailoring the changes to the new (unanticipated) threats of tyranny. I for one would be content with just such an amendment to limit the Administrative State and its coercive and constitutionally impermissible combination of executive, legislative and judicial powers.

  5. Scott Amorian says

    Rather than disagree with Eric about changes in demographics, I would expand his argument. Not only has the population changed, but the US itself has changed since the Founding. The US has grown from a collection of colonies perched on the edge of wilderness to a world superpower, which has changed the character of the body politic.

    Because today’s America is a center of power and wealth, it has become a preferred target for corruptors. Legislators in the US in the late 1700’s were concerned with much simpler domestic and agrarian concerns. Legislators today are concerned with nuclear weapons and businesses that dominate the world economy. The US dollar is the world standard for finance. The pressures and corruptions are much more powerful than during the Founding. Those pressures and corruptions affect the performance of the legislature in its duties with one of those duties being the implementation of amendments. As the legislature becomes more corrupt, the people become less inclined to support its actions, which means that it becomes more difficult to get needed support for amendment. Very few Americans today would trust the deeply corrupt legislature to change the Constitution. And the people are right to distrust today’s legislature IMO.

    I believe it would be very difficult for any proposed amendment originating in the legislature to be widely supported by the public. Proposals originating with the Republicans would be fought by the Democrats, and likewise, proposals originating with the Democrats would be fought by the Republicans, simply because they originate with the opposite party. Proposals of a bipartisan character would not be well received by the public simply because the public does not trust the legislature in general. The severe political divide and public distrust has transformed the political environment such that amendment is more difficult than in the 1700’s.

    That is why I believe that an amendment can only come from an outside body, one that is politically neutral. The most politically neutral outside body that I can come up with is a jury of randomly selected local judges, probably two per state, who are brought together periodically to consider proposals for amendments. The question to me is what group would drive the effort to arrange this, promote it and support it. It would have to be an organization truly dedicated to the cause of the preservation, restoration, and development of individual liberty.

    Add to the demographic changes the fact that the more obvious amendments have already been made. The low hanging fruit has already been picked, leaving only the more difficult and subtle amendments.

    While the lack of originalism is certainly correlative to the issue, I’m not so sure I would call it a singular causative just yet.

    As for how to fix the general problem of government corruption, specific amendments need to be make, I’ve been reading the blog posts by Buckley and I did a little digging, comparing the US form of government with the Canadian. One item that jumped out at me big time was the Office of the Conflict of Interest and Ethics Commissioner. The role of that office is to monitor office holders for conflicts of interest. It even monitors retired office holders for actives after leaving office. America needs something like that. But add to the power of monitoring of officials, the power of impeachment and the power to represent the public in challenging laws and executive actions that present apparent conflicts with the Constitution. I believe that such a proposal for amendment would receive widespread support from the general public, since the public is quite disgusted with the corruption and constant violations of the Constitution by office holders.

    One of the early proposed amendments was the Titles of Nobility and Honour Amendment. In some texts there were not twelve original proposed amendments, but thirteen, and this was the thirteenth. Its text read:

    “If any citizen of the United States shall accept, claim, receive or retain any title of nobility or honour, or shall, without the consent of Congress, accept and retain any present, pension, office or emolument of any kind whatever, from any emperor, king, prince or foreign power, such person shall cease to be a citizen of the United States, and shall be incapable of holding any office of trust or profit under them, or either of them.”

    This proposal was almost ratified, and one group, TOMA, argues that it actually was ratified. If I recall correctly, the proposal did receive enough ratifications per the time it was proposed, but it was not ratified until after other states joined the union, so at the time of the last ratification the condition of three fourths majority was not met. For that reason it was not considered ratified.

    What I find interesting and relevant about this proposal is the fact that the majority of the American people (or at least the legislatures) considered “any present, pension, office or emolument of any kind whatever” from a foreign power to be cause for loss of citizenship and loss of right to hold office. It is a matter the appeals to public passion. Because this particular proposal came so close to ratification, I would assume that a rewriting that removed the objectional characteristics would produce an amendment that enjoyed enough public support to get it ratified.

    Probably if the condition of removal of citizenship for receiving gifts were removed, the proposal would receive greater support. That condition is actually legislation, not a definition of government which is the proper purpose of a constitution. I would also add another condition which is that the receipt of gifts by an officer from known person or group is bribery, and any office holder receiving a bribe be removed from office and not permitted to hold any office again. That would require politicians to receive donations through a clearinghouse to anonymized the donations. Future Presidents would be unable to receive bribes in the form of peace prizes. But this kind of amendment would require an officer such as he ethics commissioner I mentioned above for enforcement.

  6. gabe says


    some interesting points!

    As for me, I would include the loss of citizenship in any penalty for bribery committed by an elected official as it seems that one has clearly demonstrated that they do not hold the duties of citizenship in very high regard anyway.

    As for a “panel of judges,” I must take issue with that as so much of our present constitutional difficulties may be attributed to those very same “impartial” judges.
    Also, consider the “circus” that is attendant upon judicial nominations under our current system. Can you imagine how much more magnified / amplified this would be?

    I would prefer that the “constituents” of our constituent law have something to say about it – not our judicial masters.

    take care

    • Scott Amorian says

      No, not nominated justices. Local judges, elected by the public.

      If you were to put together a group to propose amendments, what group would be most likely to be supported by the public, while being knowledgeable about the Constitution and law, and that is reasonably politically neutral?

      A jury of county sheriffs? Certainly not the general public. John Q. comes up with some, uh, interesting ideas sometimes, and if left to a large uncentralized group, no movement will happen. Certainly not the current party members. They are the problem, not the solution. Certainly not judges appointed by those party members. The best group I can find are local elected judges. Local judges who have been elected to office by the public are not as biased as appointed judges. They are close to the people. Choosing at random removes selection bias. The public is quite familiar with the jury system, so the jury process invokes public trust.

      Before credible, supportable, and meaningful changes can be made, someone has to first propose those changes. Some persons must direct the work. Some persons must follow up on action items. If these things do not happen nothing will change. Then those bad principles in government that are collapsing the union will certainly continue to operate until it collapses completely, or a revolution will occur that changes government, perhaps violently and in highly undesirable ways.

      Let me challenge you and the other readers here. If you don’t like my idea, please improve on it. What persons would be better suited to propose amendments and follow them through an amendment process, and why would they be better suited?

  7. says

    A. Originalism has to become something that a larger portion of the American public than at present buys into. That means some portion of the Democratic Party, or of the many independents so-called who usually vote Dem. (And the buy-in must go far beyond the re-branding or minor re-adjustment of living constitutionalism that you get with something like Balkin’s “living originalism.”)

    B. If A. does not occur in within the next thirty or so years, AND if Democrats continue to win as they have reliably done 50% or more of national elections, then the republic really is doomed, i.e., really will be pushed into civil dissolution or administrative despotism territory. The hour is late. America will not survive an originalism-allergic (and thus Constitution dismissing) Democratic Party, unless the Democratic Party itself becomes remarkably weaker.

    C. Again and again in classrooms, I find that the average young American, is resistant to amending the Constitution much, or to thinking it needs fundamental change, but totally buys the basic arguments (i.e., sophistries) in favor of the living constitution. It has to adjust to the times…all that. This buy-in is not at all limited to liberal students, but fools many moderate, libertarian, and conservative ones as well.

    D. So originalism is a tough sell when we’re remaining at the level of generality that most beginning students and most Americans are at. Sure, after a semester of con-law with any of us here, plenty of young people will begin to see why it makes more intuitive sense.

    E. The real battle for originalism, however, will not be won directly by the jurists and con-law scholars. It will have to be won by political leaders, conservative ones AND enough moderate ones, who convince their followers that a basic “originalist persuasion” and Forthright Support for the Constitution is the way to go.

    F. One way to win popular acceptance of originalism is to announce (for the sake of political platforms but of course subject to bargaining when the chips are down) an openness to future easing of the amendment requirements. That’s basically what Scalia did recently. I’ve suggested lowering them to 55% of Congress and 66% of the states To the average America to whom “flexibility” is the great value they associate with living constitutionalist jurisprudence, this would seem like a natural trade-off for a new devotion to originalism (well, new to moderate Dems and indpts in my scenario).

    G. If I’m right that this is a rhetorical stance that can have wide appeal, then it doesn’t really matter 1) whether we agree there are several amendments our system really needs right away that justify this move, or 2) whether Mike has the better of the argument against Eric Posner, i.e., “it is because people have found other ways to change the Constitution, that Article V is a dead letter.” The point is not how we got to the poisonous present, but how to get the public to give originalism a real try.

  8. Scott Amorian says

    Let me follow up on a thought while I have a rare afternoon where I’m free to write and think.

    The reason that an ethics commissioner, or general equivalent, is vital to American justice and liberty is because liberty and justice are dependent on the character of the government officials. Rappaport used the example of the 10mph speed limit buffer exercised by highway patrol officers. The officers are required to enforce a 65mph speed limit, but they permit people to drive 75mph.

    The problem with laws is that they are unworkable by themselves. Computer scientists figured this out early on. Computer systems are just complex systems of rules, as are complex systems of laws. In the 1950s most of the principles of Artificial Intelligence were laid out. Many computer scientists believed that AI would eventually lead to smart decision-making computers. But they quickly came to discover that AI based on complex systems of rules do not work well when applied to human problems. AI systems do not communicate in plain English for example.

    The problem with rule-based systems is that the have no human context. They do not experience the universe like we do. Without the human context, the rule based systems are unable to interact with us well, and they are unable to make decisions as well as we do. A person can understand that one and one make three or more when a couple marries and has children, and a person can understand the devotion implied in that act. Or that one and one make one, when two people fall in love and get married. Or that one and one make eleven. Or that one and one makes three when we are talking about binary numbers. The context defines the subject matter. A computer only understands that one and one is two. It has no context outside of simple mathematics.

    Likewise a rule based system of laws has no human context. Law requires people to provide context. People fulfill the intent of the law, which is usually about protecting people from harm, and use the literal mechanism of law to address persons who break the law when they deem the use of punitive or incarcerating action is wise.

    If the people providing context of law are sick with cupidity, putting love of power, or ideology, or money before human decency, they will taint the law with their obtuse context.

    So the value in a Canada-style ethics commission is that it helps remove persons with unhealthy contexts from the system of law. When law is interpreted within a healthy context, harms are prevented, and the loss of liberty being a harm, the loss of liberty is prevented.

    Without a mechanism that places effective checks on cupidity, the obtuse contexts rule the land, and not only are the people not protected from harms, but the law makers and law enforcers instead become instruments of harm.

    Where Canada has an effective mechanism for addressing obtuseness in law makers and law enforcers, the US does not. So we can observe a difference between the way that Canadians relate to the corruption of government officials, and the way that Americans do. Canadians hold their officials to a high level of propriety, while Americans do not have high expectations of our officials. Until a credible mechanism is put into place, America will continue to be a place where most or all elected official are considered by the public to be corrupt in some way, and those same corrupt officials will appoint justices who support their abuses of office, which means that questions of things like whether justices should follow original intent are irrelevant. The justices will support contexts of obtuseness, not decency.

    The decency of the office holders are the first concern. Everything else follows that. If no mechanism is available for the people to use to protect themselves from indecency of office holders, the people will become despondent (politically depressed). It might appear to an outsider that the people trapped in such a system do not care about problems of their government, when the reality is that they just do not have an instrument they can use to correct the problems of government.

    Which brings us back to Rappaport’s original essay. In a human system, the only thing preventing us from changing a construct in the Constitution is the belief that it cannot be changed. Law is always the subject of human judgment. Law does not define us. We define the law because we define the law itself and we contextualize it. We can always change law, if not by one method, then another. But without officials who are basically decent, the method of of change will be obtuse. Without a system that marginalizes indecency, the officials will be indecent and law will be dysfunctional.

  9. gabe says

    ” Canadians hold their officials to a high level of propriety, while Americans do not have high expectations of our officials.”

    I think that the opening thought is really the operative one – that the Canadians themselves expect high levels of propriety from the elected representatives.
    We do have systems in place to check impropriety. They include censure, impeachment, elections, DOJ prosecution. Yet we do nothing. As you say, we make the laws, we define them; so too, we make the “climate” in which such action is either tolerated or not tolerated. As you say, without decency or virtue in officialdom we have nothing but an empty piece of legislation (ethics or otherwise).
    We began with some rather interesting “checks” on officialdom. Again, as you say, as we grew richer and more powerful the temptation to mischief has grown almost irresistible for many. I am not certain that an Ethics Commission would effectuate any significant change in the behavior of political actors. Are there not Ethics departments in many federal agencies. Heck, the IG’s are supposed to police these bad actors. Yet, nothing is done. I suppose I tend to agree more with your argument on the lack of virtue in the populace not just politicians than I do with the structural argument. In fact, I agree wholeheartedly with the proposition that we would benefit from more virtue and have argued that perhaps our Founders relied too much upon the structural mechanisms they devised to counter venality and ambition in the hopes of continuing to preserve the virtue of the people. Yet, we failed and as Z9Z99 argues we did put a pretty nifty system in place.
    Would such a Ethics structure work IF the people were virtuous – absolutely; then again how necessary would it be other than to serve as a reminder! But given our present condition, I can imagine this structure being reduced to partisan politics as well.

    As to your point about local elected judges, it is a fair approach. My experience shows me that most judges on the local level run unopposed as a result of two party cooperation and, more significantly most voters do not have a clue as to what the judge stands for or believes. Thus we lay ourselves open to chance as to who we would be entrusting with this responsibility.
    Oddly enough, I think I would prefer that we have political involvement with a substantial check by the people. How one arranges that I can only guess. However, it seemed to have been successful for Madison, Randolph, Wilson, Gerry and the rest of the boys.

    BTW: If I recall correctly you also purchased Buckley’s book. I have not yet received my copy. Is it worth bumping something out of the queue to tackle?

  10. says

    Gentlemen, if I am not mistaken, all of you have addressed “originalism” as the way to bring the citizenry back to our founding Constitution. I certainly agree! Yet, we must be careful to examine the individual methods to get there. I disagree w/”Eric Posner’s … that the constitutional amendment process is too difficult … I agree w/Mick that Eric “is seriously mistaken”. I just have a problem w/Mick’s, himself. His “originalism” contains judicial supremacy of “incorporation” of the BOR’s into the Fourteenth Amendment (not mentioned in this piece).
    Very interesting thoughts expressed in the blogs here. I am still at my current position that “impeachment” would be an opening inquest for the citizens to rationalize “originalism” in its perfect environment. After all, the Supremacy of the Constitution is over the heads of all of us – all of us.
    Respectfully, John
    (Facebook, author of The Tribute)

  11. says


    The distinctions between different types of legitimacy are my own, as far as I know. Here is a brief background on my thought:

    Any system, mechanical, economic, biological, chemical, etc. that must survive in changing environments must accommodate sometimes competing considerations of stability and adaptation. For example, an airplane has to have design characteristics that make it stable to fly without constant control inputs, but must not be so stable it cannot maneuver; nor can it be so unstable as to tear itself apart in flight. The human body has acute responses to environmental perturbations, as well as slower, more sustained mechanisms of adaptation. Economic systems have interventions to accommodate acute crises and mechanisms to maintain long term stability. Thus the first premise: Sustainable systems must have the capability to respond to acute changes without sacrificing long term stability.

    The interventions that work well for acute changes are often not only unsuitable to longer term interests, they are detrimental. If a patient has a decrease in the function of his heart muscle, the body may compensate acutely by releasing adrenaline. This has salutary effects for a couple of days, but adrenalin is toxic to heart cells over the long term. This is why patients with heart failure are given drugs to partially block adrenalin. Similarly, steroids are wonderful to treat a variety of diseases if used for short periods, but long term use causes diabetes, weak bones, cataracts, weight gain and hormone abnormalities. Similarly, if a pilot tried to fly an airplane just by fiddling with the trim setting he is not likely to have a pleasant flight. Economic interventions that are effective for short term crises cause bubbles and crashes when used as long term policy, and those policies intended to promote stability cause depressions when modified to apply to transient crises. Thus, the second premise: the methods that are designed to provide stability to a system cause damage when modified for short term exigencies, and those whose purpose is to respond to those crises are detrimental when used long term.

    Other examples range from the mundane: raiding your retirement fund to pay for a vacation; to the monumental. In World War II the Luftwaffe had a modest tactical airlift capability, that was most appropriate for supporting quick, limited actions, or supplying very limited needs. At Stalingrad, the Sixth army required 700 tons of supplies a day. Goering assured Hitler that the Luftwaffe could airlift at least 500 tons a day. The Luftwaffe, designed for quick response rather than sustained action, could manage no more than 200 tons a day and lost 246 transport planes in less than a month. Responsiveness and stability often provoke conflicting demands.

    The first distinction is therefore between acute and chronic; and between responsiveness and stability. Political systems are no different. they must provide for long term stability as wall as the ability to address emergencies. Political institutions must strike a balance between deliberation and decisiveness. Life sometimes demands rash action, sometimes prudent inaction. Third premise: these considerations are applicable to political systems.

    The barest requirement for forming a lasting polity is that there be some identifiable principles that are accepted as defining the relationship of people to each other and to the larger society. Examples might be “the people do not live for the state” or “all persons are equal before the law,” or “all humans have dignity until they give it up themselves,” etc. These principles are the foundations for the bonds that distinguish a society from a mere population and it is these these principles that must be stable in an enduring polity. It is assent to these foundational principles that confer what I referred to as foundational legitimacy; that the purposes that people have in interacting with and living peacefully among each other are recognized as legitimate. Foundational legitimacy is the product of a well drafted constitution; it establishes a basis for long term stability and reflects those principles that make it worthwhile to organize beyond the clan, tribe or gang. In other words, it is the legitimacy of the purpose for which people submit to a government. It also gives Professor Rappaport something to do, because it is the very essence of originalism. Foundational legitimacy is concerned with principles.

    People do not form communities, societies, bowling leagues, armies or mafia families simply because they have principles. They also inevitably have interests, and these quite often conflict. Polities must have methods of resolving these conflicts, as well as enabling people to interact with each other in the most beneficial and dignified manners. To do this, societies must have institutions, and it is these institutions that are the subject of ongoing legitimacy. When a constitution establishes these institutions (e.g. courts, taxing authorities, infrastructure agencies, etc.) it is establishing the mechanisms for dealing with novelty, crisis, competing interests, and the unpredictable challenges that confront people who live among each other and in the world. In order to have ongoing legitimacy, the institutions of a society must be recognized as legitimate, and this is the challenge of any society that seeks to endure. Whereas principles are in themselves incorruptible, institutions are not. When the institutions of government are corrupted (*cough,* IRS *cough*) the constitutional enterprise begins to lose ongoing legitimacy. When constitutions no longer merely establish institutions to resolve disputes, but are construed as resolving disputes themselves (as when penumbras are found, or racial preferences are divined from contrary language) they lose legitimacy. When mechanisms intended to address transient crises are used to benefit insular interests or stabilize corrupt institutions, legitimacy is lost. And most profoundly, when the principles that created the foundational legitimacy of a constitution are subordinated to discrete interests, well that’s how empires die.

    I believe that rights are inherent in the foundational principles that give legitimacy to constitutions rather than arising from the institutions that such constitutions establish. That is why I don’t think constitutions confer rights. Virtuous institutions safeguard rights and corrupt institutions violate them; neither one confers them.

    That’s it in a nutshell: transient and long term; principles and interests; stability and responsiveness; legitimacy of principles and legitimacy of institutions; defining a civilized, fair process for picking winners and losers vs. picking them outright.

    I shall address the nickname issue in another post; it touches on heraldry, internet etiquette, ad hominem fallacies, persona and perception, and mascots. Until then, you can call me Joe.


  12. Scott Ball says

    Just one more quick note during my lunch break, this about the most general problem preventing the Convention of States method.

    A COS can be viewed as a condemnation by the public of their government. In theory a COS can be held for good purposes, as when the states want something and Congress could not give a hoot about it. But in practical politics, a call for a COS generally begins with a criticism of the government and a desire to change something about it because Congress refuses to act.

    Similarly, a state can make a declaration of independence from its nation for good reasons. The state and nation agree that it is for the best for the state and nation to part. The state makes an official declaration. Everyone is happy. But in practice, a declaration of independence is often made as an act of rebellion, as America’s Declaration was. Our Declaration was a defacto declaration of war.

    A call for a COS has the same problem. When a public calls for a COS because of lack of confidence in government, the COS is more than just a call to change the Constitution. It approaches being a rejection of the government by the people. It is an act of rebellion. It is a major political statement, not as extreme as the Declaration of Independence was, but perhaps more extreme than, say, the Tiananmen Square protests in China in 1989. Where Tiananmen Square was just a protest, a COS can be an act of revolt that is quite capable of bring about specific changes, so it is a more powerful action.

    So the COS approach to amendment is problematic. To make an amendment through this method is to make a very serious and consequential political statement. Such an act could, and probably would, have national and international political consequences. Such an act could, and probably would, have economic consequences.

    Where some folks call for a COS, I, like a lot of others, tend to be cautious. It is an avenue that can be pursued, but only if absolutely necessary. It is more of a tool to keep available, but in the background, to help compel action by Congress than it is an instrument to wield carelessly. When the public gets wind of what a COS really means, the COS will become much more difficult to action. So this approach to amendment is less likely to happen. It is still an approach to amendment, but one that may never occur during the lifetime of the Union. Any proposed amendment the Congress does not care about, but the public strongly desires, will most certainly be actioned by Congress just so congressmen can get good press.

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