The proposed lawsuit is based on the fact that there are hundreds of outstanding calls for an amending convention, far more than the 34 constituting two thirds of our 50 states. The complication is that most of these applications specify a particular subject for the amendment(s) to be proposed at the convention. Can a call for a convention to propose an amendment mandating a balanced federal budget be aggregated with one to allow state legislatures to be apportioned on a basis other than gross population (the two most common topics of calls in the last half century)? The lawsuit will argue that a call for a convention is a call for a convention, and the subject matter designations in the state applications should be ignored.

This would not be the first time this argument has been tried. In 2000 and 2004 Article V activist Bill Walker filed similar lawsuits, which were all dismissed by the courts on the grounds that the determination was to be made solely by the Congress. It is not clear how the new lawsuit would try to work around these precedents. One strategy may be that the promoters of the new lawsuit are looking to have it brought by a state, which jurisdictionally would have a stronger standing than Bill Walker as a private citizen.

Regardless of the fate of such a new lawsuit to force Congress to call a convention under Article V, it raises again the issue that the Framers clearly intended that the states as well as the federal Congress be empowered to initiate amendments to the Constitution, yet the procedures of Article V have proven inadequate to realize that intent. Even if an Article V convention were called, the absence of any agreed procedures, or agreement on how to agree, would mire the effort in irresoluble risks and uncertainties.

The point of Article V was that the Framers recognized that there would be a need to revise and update the Constitution as time and experience showed. Shouldn’t we apply the same logic to Article V itself? The half of Article V intended to enable states to initiate amendments has proved completely ineffective. Rather than expend endless resources on long-shot lawsuits and a risky and uncertain convention concept which is outside the American people’s experience, why not use Article V to reform Article V itself? The text of such a reformed Article V can be found here on this website. This “Amendment Amendment” provides clear unambiguous procedures familiar to all Americans to enable them, acting through their states, to be the final arbiters of their Constitution’s meaning.

1)    Labels can be important, especially when trying to communicate a sometimes subtle argument to the public.  The term “originalism” is suitable, but what is it contesting?  “Living constitutionalism” or “evolving constitution” are awkward, unclear and even misleading.  I propose that the debate properly should be framed in terms of its fundamental issue, which is how the law is changed, and by who(m)?  To change a law (or the Constitution) is to amend it.  When courts change the law as enacted, they are amending it.  For this I believe the correct term should be “judicial amendment,” and that is how I propose we should speak of what “living constitutionalists” are advocating.  And thus its opposite, as advocated by originalists, is democratic amendment.  By framing the fundamental issue as judicial amendment vs. democratic amendment, originalists can make clear that they are defending democratic government, not the dead hand of history as portrayed so often by their opponents.

2)    However, the argument that the judiciary is exceeding its proper democratic bounds runs into a major difficulty with regard to constitutional law.  Unlike regular laws, which can be readily amended by current legislatures, the Constitution can only be democratically changed by the lugubrious procedures of Article V.  Even while accepting the concept that constitutional change should be more difficult than regular legislation, the simple reality is that Article V is now moribund.  This leaves originalists with no response when advocates of judicial amendment argue that there is no realistic way to update the Constitution unless the judiciary acts.  All of the Framers expected that such updates would be needed – they just did not foresee that the procedures they put in place would become unworkable in a vast nation with 50 disparate states.

Therefore, the article argues that originalists need to actively advocate reform of Article V.  I propose such a reform briefly in the article.  The full text of my proposal is at www.amendmentamendment.com.  Regardless of the specifics, originalism is missing half of its force if it ignores the need to reform an amendment process that makes the U.S. Constitution one of the most difficult in the world to amend.

In addition, one should note that such an effort to return ultimate control of our Constitution to democratic rather than judicial processes, could make its advocates’ other arguments better received in our current populist political climate.

Moreover, the problems of our election system do not end with the winner-takes-all corruption of the Electoral College system.  In order to implement the three-fifths compromise, where slaves counted as three-fifths of a person for purposes of allocating seats in the House and Electoral College votes, the Constitution bases those allocations on the gross population, not the citizen population.  This has resulted in a significant skewing of political power in favor of areas with large non-citizen immigrant populations.

My new short book Fifty States, Not Six – a bipartisan approach to reforming the Electoral College and assuring that every citizen’s vote counts proposes a constitutional amendment which attempts to comprehensively address all of these issues.  The Popular Electoral Vote Amendment reforms rather than scraps the Electoral College system, preserving its unifying function while assuring that every citizen’s vote counts by eliminating winner-takes-all.  It also equalizes the votes of all citizens in congressional as well as presidential elections by apportioning based on the citizen population.

This short but comprehensive look at our election system offers fascinating historical insights from the founding to the 2016 election, as well as looking forward to reforming that system so that every citizen’s vote counts.  It also shows how this proposal is in the partisan political interests of both Democrats and Republicans.  The book is now available in print for only $5.99 from Amazon and for download for only $2.99 on Kindle or Nook.

To a fair amount of publicity, Texas Governor Greg Abbott has just released a comprehensive proposal to amend the Constitution to restrict the power of the federal government, a power which in the last hundred years has grown far beyond its original constitutional bounds. The idea that only the power of constitutional amendment can permanently constrain the federal leviathan is not new. Mark Levin argued the same in his 2013 bestseller The Liberty Amendments, and many conservatives have been trying to organize such a campaign for years. However, all of these efforts suffer from a fatal strategic flaw, which makes it politically impossible to even launch such a campaign. This is that they all rely on the never used provision of the Constitution’s Article Five authorizing a convention of states to initiate constitutional amendments. Unfortunately, no such convention has ever been held in our history, nor is one ever likely to occur. Fortunately, there is an alternative way to harness the amendment power, an approach which is also politically feasible even in our current divided political environment. This is to revise Article Five to permit the states to amend the Constitution without having to go through the archaic and unworkable mechanism of a convention.

First, let’s see why the convention of states will not work. It will take 34 states to call a convention. Superficially the situation looks promising, with the highest number of Republican state legislators since 1920 controlling 67 of the 99 state legislative chambers. However, even with the largest number of Republican state legislators in almost a century, the convention drive still comes up short. Republicans control the governor’s office and both houses of the state legislature in 25 states (including Nebraska, where the unicameral legislature is technically nonpartisan but de facto Republican). Democrats only have state-wide control in seven states and there are 19 states where state government is split. Looking only at state legislatures, Republicans control both houses in 31 states (including Nebraska), Democrats control both houses in only 11 states, and eight states have a split in control between the two state legislative houses. However, the 31 states where Republicans control both houses of the state legislature, only three short of the 34 states necessary to call a convention, becomes a far larger shortfall when one considers several factors:

Governors may have a veto. In a 1798 case the Supreme Court ruled that the president did not have to sign a constitutional amendment for it to become effective. However, there has never been a ruling whether a state’s governor would have to sign a state legislature’s call for an Article V convention (or have the right to veto it), and prominent constitutional scholars have argued that gubernatorial approval would be required for a convention call. If that is the case, then the 31 state number falls down to the 25 states with complete GOP control. One can argue the point either way, but it is almost certain that there would be long drawn-out lawsuits to decide the question in every state where a Republican legislature issued a convention call which was opposed by a Democrat governor.

Not all Republicans will support a convention call. Even in the conservative movement there is substantial opposition to the idea of a convention, led by the estimable Phyllis Schlafly. Leading conservative jurists like Justice Antonin Scalia have also expressed reservations about an Article Five convention. Further, while no one would question Ms. Schlafly or Justice Scalia’s credentials as constitutional conservatives, sadly not all Republicans are true constitutional conservatives. Whether because of principled concerns like those of Phyllis Schlafly or Justice Scalia, or RINO disinterest, one cannot assume that all of the Republican state legislatures will bestir themselves to join in a call for a never before used Article Five convention. And the 31 or 25 state number declines further.

No Democrats will support a convention call. If the 34 state threshold cannot be met even with historically high Republican control at the state level, the only solution is to get some Democratic support. However, if the purpose of the convention is to limit the power of the federal government, what contemporary Democrat is going to support that? Democrats might support an open-ended convention free to also propose amendments increasing the power of the federal government, but then any convention would degenerate into a media circus dominated by leftist law professors, wasting the efforts of constitutional conservatives to bring it about.

There is an alternative — direct state action without a convention. So, do we just give up hope on using the amendment power to push the federal government back into its original constitutional constraints, constraints which an imperial federal judiciary has been ripping apart for 70 years? Clearly the Framers contemplated that amendment of the Constitution would be necessary and appropriate. That is why they included Article Five. And equally clear is that they intended that the states should be able to initiate amendment proposals just like Congress. Nonetheless, to date all 27 amendments have been initiated in Congress rather than the states.

The problem is the convention itself. Hastily enacted on the second to last day of the 1787 constitutional convention over James Madison’s strong objections, this archaic mechanism was perhaps a sensible way for the states to get together in an era of horse and sail, but is completely outmoded in today’s world. And, even if the impossible 34 state threshold for calling a convention were met, it would be a procedural nightmare tied up in litigation for years (see here). For example, if it tries to follow precedent and have one vote for each state, it is certain to be challenged under the Supreme Court’s “one-person, one-vote” cases. This issue would go to the Supreme Court, which would bolix the start of the convention for years. (How can you have a convention without knowing how the votes are going to be counted?)

The solution is to eliminate the requirement that the states act through a convention to initiate amendment proposals. Mark Levin proposes such a step in chapter 9 of his book The Liberty Amendments. My similar but slightly more complete proposal, the Amendment Amendment, can be found here. Under the Amendment Amendment, any five states could launch an amendment proposal without having to call a constitutional convention. With no convention, there would no chance of a “runaway” convention so feared by conservative convention opponents. And, most importantly, there would be a path for constitutional conservatives to enact amendments restoring the original constitutional limits on federal power without having to go through Congress at all.

Of course, either Levin’s proposal or the Amendment Amendment would have to be enacted the old fashioned way. How does one get two-thirds of each house of Congress to approve a proposal which returns control of the Constitution to the people? And, as with a drive for a convention, even if all the Republicans in Congress supported it, Democrat votes would still be needed. Here is where Levin’s proposal or the Amendment Amendment are superior to the convention approach. They are content-neutral. Liberals could use a reformed amendment process to launch their own proposals. This issue is particularly lively on the Left these days because of the desire to reverse the Citizens United decision.

While constitutional conservatives (and most of those 67 Republican state legislatures) would oppose any effort to gut the First Amendment, a temporary coalition with liberals to force Congress to enact a content-neutral proposal like Levin’s or the Amendment Amendment could work. As never before, there is intense interest in the subject across the political spectrum.  With a public outcry from both the left and the right, members of Congress would vote for it just to shut up the voters. Congress would know that this opens up an end run around it. However, members of Congress have short time horizons, and would vote for amendment reform because it is only procedural, and would not commit them to any particular amendment. Do something popular that actually doesn’t do anything right away? That’s right up Congress’ alley! Since it would give states legislatures a significant new role, ratification by the states would follow quickly.

Then we could get right to the business of enacting needed constitutional amendments. All the work and resources devoted to calling a convention to no avail could then be directed instead to actually passing amendments, such as proposed by Governor Abbott. By offering a real chance of enacting amendments, this reform would galvanize the grassroots, and could restore our republic in a time frame which would probably find an Article Five convention drive still looking for 34 states, or tied up in the courts.

Finally, this is not an exclusive “either-one-or-the-other” proposition. Constitutional conservatives can push for both an Article Five convention and Article Five reform simultaneously. In fact, given the daunting arithmetic facing a convention call, it would be strategically wise to pursue an alternative in parallel with the elusive quest for 34 states to call a convention. We are all suffering under a massive centralized leviathan which has utterly betrayed the Framers’ original vision of a limited federal republic. The Framers created the amendment power in part to give the people a means to prevent that. We should use every tool possible as soon as possible to carry out that mission.

Conservative criticism of the idea is largely based on concerns that any such convention will fall under the influence of leftist legislators and law professors, and propose amendments which would increase rather than decrease the power of the federal government.  While such amendments could still be stopped by defeating them in 13 states, they would waste all of the effort and resources invested in such a convention.   However, an even more certain problem with a state-called convention would be the one Madison pointed out at the 1787 convention – Article V’s lack of procedures, or of any method to determine procedures, a problem which would make such a convention unworkable.  These procedural problems are detailed in an article I have posted online under the title, To Originate The Amendment of Errors: Reforming Article V to Facilitate State and Popular Engagement in Constitutional Amendment.

To give one example, how will votes be allocated at the convention?  The default position would be state equality as at the 1787 convention, but many will object to that as a violation of the Supreme Court’s one-person, one-vote cases, and demand some allocation of votes proportional to population.  Both would have colorable arguments, and would make it certain that any state-called convention would be tied up in litigation for years as this and other procedural issues made their way up to the Supreme Court.  If you can not decide how to count votes, you can not do anything at a convention.

The solution, as elaborated in To Originate The Amendment of Errors,  my short book Are We The People? (described here), and on this blog, is to first adopt one of Levin’s and others’ suggestion to amend Article V to allow states to initiate amendment proposals without having to go through the untried, unworkable and archaic mechanism of a convention.  My proposal for such an Amendment Amendment would permit any five states to launch an amendment proposal without all the labor and risk of calling a convention.  As there would be no convention, there would be no chance for a “runaway” convention.  Instead, everyone would know exactly what they are voting on upfront.  In this way, grassroots groups could invest their resources directly in promoting their amendment proposal on the state level without ever having to go to Congress or incur the expense and risk of a national convention.

 I am pleased that a scholar of Professor Tribe’s distinction should come to the defense of our Constitution.  Yet, as I pointed out in an earlier post, Professor Tribe is of the school of legal jurisprudence which allows the Supreme Court to effectively revise the Constitution to adapt it to changing circumstances.  Professor Seidman’s argument that we must abandon constitutional strictures in order to assure a fresh political conversation is the logical extension of Professor Tribe’s own philosophy.  If the Supreme Court is not obligated to respect the original written Constitution, why should anyone else be?

 The Wall Street Journal and Megyn Kelly have asked Professor Seidman the obvious question: why he did not look to amending the Constitution rather than abandoning it altogether?  He rejected this approach because the amendment process is too “arduous.”  (The link is to a report in the ABA Journal because the Wall Street Journal site is restricted.)  He has a point in that our Constitution is currently the most difficult in the world to amend.  However, if Professor Seidman finds the amendment process too arduous, isn’t the better solution to reform the amendment process to make it less arduous?  A re-invigorated amendment process would provide an orderly method to incorporate the democratic debate Professor Seidman professes to favor without the risks of justifying a free-for-all of constitutional disobedience (“constitutional disobedience” is the name of his forthcoming book).

One suspects though that his critique, which goes back at least to Woodrow Wilson, is really about supplying a rationale for members of the ruling elite like Professor Seidman to disregard aspects of our Constitution which they dislike.  A functioning amendment process might actually let the hoi polloi, such as those nasty Tea Party people or genuine populist progressives, have a voice in our Constitution.  They might even ignore wise members of the law school professoriate like Professor Seidman (and Tribe).  It might even make the first three words of the Constitution (We The People) more than a poetic rhetorical flourish.

First, the argument is not about the merits of allowing persons of the same gender to enter into the legally defined relationship called “marriage.”  In fact, the heart of the argument is that those merits, pro or con, should have no bearing on how the Supreme Court decides the “gay marriage” cases before it this term.  Their place is in the democratic political arena, before a state legislature or in a popular referendum, not in the courts.  To argue that the courts should take such merits into account in deciding that the United States Constitution overrides such democratic decision-making is to place the judiciary above the People, and moves us further down a path toward rule by the elites over rule by our Nation’s citizens.

In his first inaugural address in 1861, Abraham Lincoln spoke of the Supreme Court’s then recent Dred Scott decision, where the Court had thought to resolve sectional conflicts over slavery by upholding the right to own slaves throughout the United States.  If the Supreme Court were allowed to be the final arbiter of the Constitution’s meaning, Lincoln said, and extend its decrees beyond the parties to the specific cases before it, “the people will have ceased, to be their own rulers, having … resigned their government, into the hands of that eminent tribunal.”  How can we call our system of government democratic when five unelected, life-tenured and unaccountable judges can irreversibly change the meaning of our Constitution? 

Now, does this mean that the courts should never enforce the Constitution, or act to protect citizens’ constitutional rights?  Of course not.  The question is on what basis the courts decide such cases.  There are two contending schools of judicial interpretation today on this question.  One holds that the Constitution should be seen as a fluid, “living” document for which the meaning can shift with the times.  Thus, if society comes to accept gay marriage, the old language of the Constitution should be interpreted to require the recognition of gay marriage even though such an outcome would have been inconceivable to the original authors of that constitutional language.  Now this philosophy is a lovely sentiment.  Who wants a “dead” Constitution? 

The problem comes in the implementation.  Federal judges are appointed, not elected, and serve for life.  It is true that they must be appointed by the President and approved by the Senate, but that happens only once.  After that, in the case of Supreme Court justices there is no appeal from their decisions, no reversal of their decisions (unless they do it themselves), and no limit to their power to read their personal legal, political, economic or social views into the language of our 225 year old Constitution.  When the Supreme Court is allowed to assume the task of adjusting the Constitution, rule by the people is negated, and replaced by the rule of a few elite lawyers.

The second school of interpretation holds that the courts are not superior to the people or their elected representatives.  This school contends that the Constitution says what it means and means what it says.  In order to prevent judges from twisting constitutional language to read their own personal legal, political, economic or social views into it, the language of the Constitution and other laws must be considered to have their meaning fixed at the time the language was first enacted.  If a law is deemed to be inappropriate for the times, the way to change it is to democratically have the relevant legislature change the law.  If the legislature will not change the law, the people can change the legislators at regular elections and in many states can also change laws by popular referenda.  It is not the judiciary’s place to change a law of which a judge or judges disapprove.  This approach, sometimes called “originalism,” preserves rule by the people and secures it against usurpation by the judiciary.

This argument runs up against a difficulty, however, when one comes to the Constitution.  One can not change the Constitution by a simple vote in a legislature or a referendum.  How does one adjust the Constitution for changing times?  The Framers’ solution was clear.  It was not to allow the Supreme Court to rewrite the Constitution to the justices’ liking.  The Framers’ solution was Article Five, the amendment process.  As Lincoln further explained in his first inaugural, our “country, with its institutions, belongs to the people who inhabit it.  Whenever they shall grow weary of the existing government, they can exercise their constitutional right of amending it.”  The recent Steven Spielberg movie Lincoln dramatically portrays what Lincoln went through to follow his own precepts and initiate a constitutional amendment to reverse the Supreme Court’s Dred Scott decision and abolish slavery.

Unfortunately, today the amendment process set forth in the United States Constitution is moribund.  At the time the Constitution was adopted, it was the first written national constitution in the world.  The Framers had no history to go by in determining the right balance of difficulty and ease for amendment.  One wants constitutional amendment to be more difficult than simple legislation in order to preserve basic stability in our governmental system, but not so difficult that no meaningful amendment can ever be passed.  It turns out that since Article Five was written, every other constitution of the states of the United States and of every democratic nation have made amendment easier than it is in the United States Constitution, which is now the most difficult in the world to amend.  In fact, the last time constitutional amendment was used in the United States to resolve a major national issue was almost a century ago, in 1920, when the 19^th Amendment gave all women the vote.

This difficulty in changing the Constitution through the democratic process of amendment has provided much of the impetus to the first school of judicial interpretation.  If the Constitution can not be amended formally, it must fall to the judges to amend it informally through strained judicial interpretations which stretch the language’s meaning beyond any possible original intent.  The prime example of this is what I call the “four-word” Constitution (see the chapter by that name in Timely Renewed for more detail on this point).  Two two-word phrases in the 14^th Amendment, “equal protection” and “due process,” have been stretched by Supreme Court decisions to create legal doctrines which encompass literally thousands of words.  The 14^th Amendment was meant to supplement the 13^th Amendment (subject of the movie Lincoln) in assuring the rights of the newly freed African-Americans.  However, it has instead been invoked to grant personhood to corporations (which underlies the Citizens United decision) and to decree that unborn babies are not persons whose rights supersede their mothers’ vague right to privacy (which underlies Roe v. Wade).  In earlier times these little phrases were held to forbid states from passing wage and hour laws (in a famous, or infamous, case called Lochner v. New York) and more recently to argue that all of the states must marry couples of the same gender.

Which brings us to the gay marriage cases now before the Supreme Court.  There are two sets of cases.  In one, the plaintiffs challenged the right of a majority of Californians to vote for a referendum measure in 2008 called Proposition 8 which limited marriage in California to heterosexual couples.  In the other the plaintiffs challenged a law enacted by overwhelming majorities in Congress and signed by President Bill Clinton in 1996 called the Defense of Marriage Act (DOMA), which provides that federal spousal benefits are only payable to opposite-sex spouses.  In both cases lower courts have overturned the vote of the people of California and the act of the democratically elected United States Congress and President Clinton on supposed constitutional grounds. 

The 2-1 anti-DOMA decision from the Second Circuit is a confusing morass which flits from rationale to rationale.  At one point it argues that marriage has been traditionally defined by the states, and therefore the federal government is bound by state marriage laws.  This argument might hold if Congress enacted a law either forbidding or requiring states to pass laws regarding gay marriage.  However, DOMA only applies to the payment of federal benefits under federal programs funded by federal taxes.  Here clearly the federal government has a right to establish a uniform rule.  In the end the decision really argues that refusing to recognize gay marriages violates the “equal protection” language of the Constitution (although in the case of the federal government that is in the 5^th Amendment rather than the 14^th) – but only sort of.  Because the phrase “equal protection” is so vague, judges driven by their desire to write their personal policy views into the Constitution can not resist the temptation to twist that little phrase to benefit some favored class.  In the late 1800s and early 1900s Supreme Courts did this to protect big business corporations, and similarly today judges want to do the same for a powerful and popular modern constituency.  However, the judges of the Second Circuit did not want to argue that gays have suffered like the enslaved African-Americans, because that would be ludicrous.  Therefore, they invented a watered down category just for gays, a category that has no basis in constitutional language or history, but which permitted the Second Circuit judges to write their personal pro-gay marriage social views into the Constitution without making the ridiculous argument that not recognizing gay marriages was equivalent to the horrible oppressions endured by African-Americans in our history.           

In the Proposition 8 case, also decided 2-1, a notoriously left-wing Ninth Circuit Court judge used a bizarre interpretation of a case called Romer v Evans to rule essentially that a state can never repeal a law if a judge feels that that law grants a right.  This is patent nonsense, and most observers agree that the judge only used this approach in an effort to appeal to the vanity of Justice Anthony Kennedy, the author of the Romer decision who many feel will be the swing vote in deciding the gay marriage cases.  (That a single judge may decide such a major issue for over 300 million Americans now and for generations to come also illustrates the profoundly anti-democratic nature of our present system of judicial supremacy.) 

In contrast, the lower court decision that the Ninth Circuit Court was upholding did not shirk from openly rewriting the Constitution.  There San Francisco based Judge Vaughan Walker ruled that gay marriage is required by the “equal protection” clause of the 14^th Amendment everywhere the 14^th Amendment applies, that is the entire United States.  Mandating gay marriage throughout the United States is the honest and straight-forward objective of all gay marriage advocates.  Now, calling Judge Walker’s decision honest does not mean that it is correct, or that he is an honest man.  In fact, there is considerable controversy over his decision not to disclose to the parties in the case that he was partnered gay man who might therefore have had a direct personal interest in its outcome.  Whether he should have been legally required to take himself off the case can be argued either way, but there can be no question that in keeping his personal stake in the case secret he blatantly violated the spirit of judicial openness and disinterestedness which is fundamental to maintaining public faith in the integrity of our judicial system.

Be that as it may, Judge Walker boldly went where the other judges dared not to go, even though they clearly would have liked to go there, and forthrightly elevated gays to the protected status intended by the 14^th Amendment for the former African-American slaves.  While the Ninth Circuit judges dared not go there, their Proposition 8 decision is just a clever cover to try to keep Judge Walker’s ruling in place in our most populous state.  (The Ninth Circuit’s rationale would supposedly only apply to California, but its reasoning would assure that no state could ever repeal a law again without a federal court battle.)  

Why did the Second and Ninth Circuit judges resort to such legal ruses to implement their personal pro-gay marriage social policy preferences?  One reason is that the Supreme Court has already unanimously ruled that the United States Constitution does not mandate gay marriage in a 1971 case called Nelson v. Baker.  However, the larger problem is that there is simply no basis in the United States Constitution to require that either the state or federal governments recognize gay marriages.  If the members of Congress and the state legislators who enacted the 14^th Amendment in the late 1860s had been told that it would require that states allow two men (or women) to marry, it would not have received a single vote anywhere.  And that would be equally true when the 5^th Amendment was enacted in the 1790s.  There is simply no argument from original meaning to find the recognition of gay marriage mandated by the United States Constitution. 

(Ironically, in the same December 21 edition of the Washington Times where my op-ed appeared, there was a tribute to the late and much missed Judge Robert Bork by Washington DC attorney Theodore Olson.  Judge Bork was one of the great authors and champions of the modern originalist school of constitutional interpretation.  The irony is that Mr. Olson, in a complete betrayal of Judge Bork’s principles, is one of the lead attorneys in the Proposition 8 cases advocating that the Supreme Court force gay marriage on the entire United States by judicial dictate.)

So what do we do if times and people change?  Reacting to news that the Supreme Court would hear the gay marriage cases, gay advocates were cautiously optimistic.  As one told the New York Times, “we’ve made enormous progress and built irrefutable momentum, winning the freedom to marry in state after state and winning over a solid majority of support in this country,” and another declared that “there is no doubt that the wind is at our backs.”  Such arguments would raise the old joke that the Supreme Court follows the election returns to a principle of constitutional adjudication.  They reflect the school of fluid judicial interpretation which would make the Supreme Court simply one more law-making body, except one that does not have to face elections or any other democratic restraint. 

The first solution to changing times and circumstances is just that – democracy.  As the gay marriage advocates noted, more and more states are adopting gay marriage, and Congress can repeal DOMA at any time that its opponents succeed in making the political case against it.  Why abandon the democratic process when one is winning the democratic argument?  But beyond that, what if we want everyone in the United States to have access to gay marriage, or otherwise update our old Constitution?  With the current amendment process moribund, how do we achieve that if we do not want the judges to usurp the People’s control over their Constitution? 

The answer is to re-invigorate the amendment process through some modest reforms which would open it to greater participation and feasibility, all while maintaining the principle that amendments must be approved by super-majorities.  Such an Amendment Amendment proposal is laid out in more detail elsewhere in this blog and in my book Are We the People?  With this reform, control of our Constitution (which begins after all with the words We the People) can be restored to the democratic process and the judiciary’s usurpation of the amending power will be delegitimized.  However, even before such a reform is passed, the Supreme Court can begin the restoration of the People’s right to control their Constitution by leaving this contentious social issue to the democratic process, rather than cutting short the people’s deliberations by decreeing that they must resign their voice to the dictates of that high tribunal.

Using Amendment to Take Back Our Constitution from Big Government, Big Business and the Supreme Court

I have not posted on the Affordable Care Act decisions because I’ve been busy getting out my new book, Are We The People? Using Amendment to Take Back Our Constitution from Big Government, Big Business and the Supreme Court.   This controversy is an excellent opportunity to step back and ask the “big picture” question:   ”Why it is, in a democracy, that a single Supreme Court justice can decide on the meaning of our Constitution for over 300 million Americans – even though our Constitution begins with the words WE THE PEOPLE?  Do you personally remember the last time the meaning of the Constitution was decided by the deliberative democratic method the Framers intended – amendment?

Are We The People? shows how we, the People, can take back control of our Constitution from Congress and the Supreme Court.  By enabling the states to directly initiate amendment proposals and other careful limited reforms, the Amendment Amendment will revive the ultimate power the Framers gave us.  Carefully balanced to appeal to both progressives and conservatives, the Amendment Amendment set out in Are We The People? is intended as a politically realizable proposal which could actually be enacted under our existing amendment procedures.  It is time to reform the amendment process and return final control of our Constitution and our government, as the Framers intended, to we, the American People.

Are We The People? is available in e-book format for only $2.99 from Nook and Kindle, and in print from Amazon and other online outlets for only $5.99.

It is quite arrogant of Professor Levinson to describe a document which has served and endured for 225 years as imbecilic.  But he is not alone.  In this criticism he renews the complaints of progressives since Woodrow Wilson frustrated by their inability to get the Founders’ convoluted tri-partite federal government structure to act decisively and vigorously to address the many problems they are sure the federal government can solve.  Fortunately, Professor Richard Epstein has written an excellent rebuttal to Professor Levinson, pointing out how many of our modern problems began precisely because in the early 20^th century the Supreme Court allowed the federal government to breach its constitutional bounds and expand far beyond its original constitutional functions.  Professor Epstein goes on to show how many of Professor Levinson’s proposed constitutional innovations would just make matters worse.

What leftists like Professor Levinson can not, or will not, recognize is that any expansion of a government’s power must necessarily detract from the liberty of its people.  That is the very definition of government.  It is the institution which people in society permit to curtail their liberty in order to benefit from living in society.  As Professor Epstein notes, we “should not defend a state of anarchy to ward off the excesses of state power. But unless we once again find the middle ground between too much and too little government power, we will continue to suffer as a nation.”  The Founders’ brilliant insight was to create an institutional framework for reaching that middle ground.  They could not see into the future to know exactly what the appropriate level of government power should be.  But they could create a balanced government system which would make it difficult to expand government power without the consent of many different political actors.  This would protect the interests of liberty against the forces always pushing to expand government power.  Professor Epstein concludes that the “original Constitution was not imbecilic.  On many questions, it reflects a level of wisdom that has unfortunately been lost today.”

However, there is one critical point where both professors shoot wide of the mark.   The main point of Professor Levinson’s piece is that the Article V amendment process is now moribund.  He writes that the “last truly significant constitutional change was the 22nd Amendment, added in 1951, to limit presidents to two terms.”  I would disagree – the last truly significant constitutional change was actually the 19^th Amendment, added in 1920 to extend the franchise to women in all the states!  He continues that the “near impossibility of amending the national Constitution not only prevents needed reforms; it also makes discussion seem futile and generates a complacent denial that there is anything to be concerned about.”

Professor Epstein’s response shows that there is in fact much to be concerned about.  In the absence of a workable amendment process, the Supreme Court has usurped that function and, as well summarized by Professor Epstein, in decisions beginning even before the Roosevelt New Deal Court created a situation where “today’s working Constitution is quite different from the sparer government regime put in place by the original Constitution” and this “increased role of the government in the economy has had a negative effect on American society.”

The issue is, what do we do about it?  Professor Epstein and I had a brief exchange on this during a recent Federalist Society teleforum on his new book, Design for Liberty: Private Property, Public Administration, and the Rule of Law,  Professor Epstein first noted that none of the current Supreme Court justices, including the “conservative” ones, had shown any inclination to reverse the last 80 plus years of Supreme Court precedents which have effectively amended the Constitution to allow this vast expansion of federal power.  When I asked if he could craft a constitutional amendment to annul these decisions he assumed I was suggesting an amendment which would be initiated by a second constitutional convention under the current Article V as advocated by Professor Levinson.  Professor Epstein expressed his opposition to such a convention because “Sandy Levinson would run it.”  (I agree with Professor Epstein here, having written in an earlier post that one reason to oppose the convention method of constitutional amendment is because law professors and politicians would control it.)       

Professor Epstein stated that his approach was to build the normative case for returning to limited government.  This is a worthy pursuit and I pray for his success in persuading many others.  But even if he is successful, by what method would the return to a more limited government be implemented?  To restore something approaching the pre-New Deal limited federal government would require overturning dozens, maybe hundreds, of Supreme Court precedents.  If even conservative stalwarts like Clarence Thomas and Antonin Scalia will not do this, how will it be achieved?  Will we rely on politicians to simply vote to restore limited government?  To think that this could be accomplished simply by the normal political processes belies all experience.  And even if one President or Congress rolls back the federal leviathan to some extent, that work can easily be reversed by the next set of politicians to promise that Nanny Sam will fix everything.

The only way to restore some form of limited federal government is to turn to the ultimate power the Founders gave us – amendment.  Only amendment can effectively overcome the decades of hoary Supreme Court precedents which underlie the federal leviathan.  These would not be radical amendments of the type Professor Levinson advocates.  Instead, these would be amendments simply restating and re-affirming the original constitutional limits on the federal government.  Of course, the federal Congress will not initiate amendments limiting its own powers.  Therefore we must reform the amendment process to enable the states to initiate amendments without having to go through either Congress or the unworkable and outmoded mechanism of a convention.  This will open the path for grassroots constitutionalists to restore the constitutional balance Professor Epstein advocates.  Such an “amendment amendment” proposal can be found here.

 We will not know with certainty until the actual decision is released, which Court observers expect will be in June.  Justice Kennedy has disappointed constitutionalists before, and is capable of cobbling together some narrow reason to let the individual mandate and the entire law survive.  However, assuming the law is ruled invalid, what next?  Historical comparisons are never exact, but those who have studied the rise of the modern federal regulatory state can feel a sense of déjà vu over the events of the last few days.

 In the mid-1930s, a series of headline-making Supreme Court decisions overturned not one but many aspects Franklin Roosevelt’s New Deal.  Some observers thought the whole Roosevelt program dead, and expected a major Republican comeback in the 1936 elections.  Instead, FDR went on the attack, blaming “economic royalists” for the continuation of the Depression and denouncing the Supreme Court for blocking Democrats’ efforts to use government to “help” Americans recover from the Depression.  One can reasonably argue that the entire Democrat campaign was a massive prevarication, but politically it worked.  FDR won re-election in a landslide, and Democrats made substantial gains in Congress.

 In the midst of this political attack, one of the Supreme Court justices who had been voting against the New Deal laws, Owen Roberts (no relation to the current Chief Justice), switched to uphold a New Deal law like one the Court had struck down only a year before.  Shortly thereafter Roosevelt launched his infamous “court-packing” scheme, so Roberts’ vote has since become known as the “switch in time that saved nine.”  However, more important than this, other justices who had been voting against the New Deal laws began to retire.  Although he had not been able to appoint a single justice in his first term, by the end of his presidency FDR had named eight of the nine justices.

 Starting from 1937, the increasingly Democrat Supreme Court reversed most of the anti-New Deal decisions, and effectively eliminated all constitutional restraints on federal economic regulation.  This culminated in the 1942 Wickard v Filburn decision which held that if an economic activity might affect interstate commerce the federal government can regulate it. 

Wickard is the foundation on which not only Obamacare, but almost every other modern federal economic regulatory scheme is based.  It is the basis for allowing the EPA to regulate the use of tiny parcels of land and to stop any economic activity which might affect a single obscure species found in only one state.  It is the basis for preventing a local farmer who only sells locally from calling his produce “organic” unless she or he complies with reams of federal paperwork.  The examples go on ad nauseam.  At the end of his presidency, FDR boasted that, although he had lost the battle over his court-packing plan, he had won the war of bringing the Supreme Court into line with his New Deal philosophy of vastly expanded federal power.

 What lessons do the events of the 1930s have for us today?  First, it is still critical that Obama be defeated.  It is almost certain that any decision against Obamacare will be 5-4.  Justice Scalia is 76 years old and Justice Kennedy is 75.  While Justice Thomas is “only” 63, he is said to be frustrated with his lonely stance of firmly standing by the Constitution’s original meaning (even Scalia can drift from respect for the Constitution’s original meaning).  All Obama has to do is to replace any one of these three in a second term, and the Supreme Court will shift to upholding the leftist agenda by consistent 5-4 votes, including reversing any decision against Obamacare by the current Court.

 As many have pointed out, a decision overturning Obamacare may ironically help produce this result if conservatives get complacent over a Supreme Court victory.  Obama will be relieved of the burden of defending the wildly unpopular law, yet will be able to energize his base by denouncing the “Republican” Supreme Court’s obstruction of his efforts to “help” the people.  (On the other hand, there might be a somewhat offsetting advantage if Romney is the Republican nominee, since he is ill-equipped to attack Obamacare.)

 Second, a Supreme Court decision against Obamacare could dilute the energy for reducing federal power back to something approaching its original constitutional bounds.  The legal arguments presented against Obamacare assume the validity of all prior Supreme Court decisions.  A decision overturning Obamacare will draw a line against the further expansion of federal power, which is a very good thing, but it will do nothing to roll back the previous expansion of federal power since the New Deal.  The EPA and all of the other alphabet soup of czars and regulatory agencies will remain undisturbed.  Again, complacency and lack of a clear target are the dangers. 

 (However, there is a somewhat offsetting advantage here also.  The publicity over the Obamacare cases has significantly raised public awareness of Wickard and its ilk, cases which even most lawyers had forgotten about if they were more than a few years out of law school.  This can only help in the larger war of educating Americans on how the federal government has expanded far beyond the limits the framers so carefully built into the Constitution.)

 Third, a victory in the Supreme Court will perpetuate the myth that the Supreme Court will protect our freedoms.  As the FDR New Deal cases like Wickard and many since show, the Supreme Court is just as capable of taking away our freedoms as it is of preserving them.  We need to get over the New Deal idea that the Supreme Court is the ultimate arbiter of the meaning of the Constitution, and has the right to change its meaning to keep it up-to-date with current social thought.  We can not rely on the Supreme Court.  Only the political victory of Americans who respect the Constitution, reinforced by constitutional amendments restating and re-affirming the Constitution’s original meaning and structure, can permanently assure the restoration of our freedoms and Republic.

 To accomplish the first we need to elect constitutionalists to Congress and state and local offices, not just the presidency.  To accomplish the second, we need to reform the amendment process to allow states to initiate and enact amendments without having to go through Congress or the unused and archaic mechanism of a convention. Such a proposal can be found here.