Constitutional Change, Article V, and the Presidential Election

Recently, I did a podcast interview on Constitutional Amendments and the Presidential Election.  The interview, which was conducted by the National Constitutional Center, also featured David Strauss of the University of Chicago.  Jeff Rosen, the President of the National Constitution Center and a Professor at George Washington Law School, was the interviewer.

It was an interesting discussion, which focused both on the constitutional amendment process and the impact that Hillary Clinton and Donald Trump might have on constitutional change if they were elected.

It was fun discussing these issues with David Strauss, because his views are so diametrically the opposite of mine.  Many nonoriginalists resist being described as living constitutionalists.  Strauss embraces it.  He takes the opposite position of mine on a whole range of specific issues, which follows from his more general approach.

Strauss believes two main things about constitutional change.  First, he claims that the actual practice of constitutional change occurs through judicial decisions and other governmental actions.  In fact, he believes that constitutional amendments are largely irrelevant.  Second, he believes that constitutional amendments are not generally a good way generally of changing the Constitution.  The way that is actually practiced – where judges follow a common law like system – is better.

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Amending the Seventh Amendment

I have been exploring the original meaning of the Seventh Amendment right to a civil jury trial.  Here, I want to step back from that discussion and instead address the desirability of the Seventh Amendment.

In my view, it is not clear that a strong civil jury trial right is desirable.  My reasons are similar to those that have been voiced by critics over the years.  The civil jury is expensive in terms of the time taken from jurors and to the litigating parties.  The civil jury is often not sufficiently expert to adjudicate complicated facts.  And the civil jury often does not apply the actual law but instead their own views of justice.  While the civil jury is a check on judges, I am not sure it is worth it.

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The Silver Lining of a Very Bad Proposed Amendment

This week, Senate majority leader Harry Reid will bring to the floor an amendment to the Constitution that would permit Congress and the states to target the resources that certain people use to speak about candidates and issues at election time.   A commentator recently complained that bringing this amendment to the floor wastes the Senate’s time, because the proposal has no chance of securing the supermajorities it would need to be passed and ratified. I nevertheless would welcome a prolonged debate.

My reason is not that I favor the amendment.  Giving Congress the power to send people to jail for messaging at election time seems to me the most pernicious effort to suppress free speech by the federal legislature since the Alien and Sedition Acts.  Prohibiting expenditures on political speech curtails the opportunity for citizens to make their voices heard and for other citizens to learn what their representatives are doing. And allowing members of Congress to determine the content of such restrictions turns the First Amendment’s charter of freedom into a delegation for regulation by self-interested regulators.

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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…

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Busting Through Our Dysfunctional Political Consensus With the Wisdom of Alexander Hamilton

For six-plus months, Greve, you’ve been yapping and yammering about the institutional causes of our political and economic malaise. Let’s say you’re right: what’s your solution?

I’m deeply suspicious of anyone bearing solutions (including myself), but here’s an idea:

Amendment XXVIII. For any fiscal year in which federal outlays exceed federal revenues, the IRS shall assess and collect a national head tax sufficient to cover the shortfall unless two-thirds of both houses of Congress vote to suspend the tax for that fiscal year.

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