The argument is that our country should be governed with political power equally allocated on a ‘one person, one vote’ basis.  This standard was articulated by the Supreme Court in the 1960s when it ruled that state legislative districts had to have equal numbers.   At that time, in many states rural districts had greater representation than urban districts due to people moving from the country-side into the cities and suburbs.  Today, the situation is reversed, with urban areas having greater representation due to their disproportionately larger non-citizen populations overall compared to rural areas.

In the 1960s these Supreme Court cases were very controversial, and there was a major drive for an Article V convention to amend the Constitution to reverse those decisions.  However, the principle of “one person, one vote” laid down in those cases is now broadly accepted.  Then Democrats were strong advocates of such equal representation, both on principle and because it would benefit them politically.  The principle of “one person, one vote” remains the same.  Now the question is what do Democrats do when the principle of equal representation may conflict with their political interests in many (but not all) cases.

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.

I discuss this “four word” Constitution further in chapter 9 of my book Timely Renewed, and discuss a constitutionally sound way to update the Electoral College system in my new book Fifty States, Not Six.

Other commentators have addressed the substance of his proposals (for example here and here).  In this post I want to look at Justice Stevens’ proposed amendments from another angle.  I want to briefly analyze how well they are written.  It may be argued that it is rather cheeky for an everyday working lawyer to presume to correct the drafting of a Supreme Court justice, but I think I can bring a couple of skills to such an effort.  First, I have spent my legal career drafting contracts, often in a small business context where my clients and the other party would actually read the contracts.  As dull as contractual writing is, it does force the draftsman to be as clear as possible, both to state the parties’ intent and to avoid unintended readings.  Second, I put myself through the exercise of drafting (and redrafting in later editions) many constitutional amendment proposals in writing my book Timely Renewed: Amendments to Restore the American Constitution.  Amendment drafting poses particular challenges.  One must try to be precise without being so wordy that the proposal reads like a statute rather than a fundamental law.

Stevens’ proposals run all over the lot with regard to subject matter.  What links them is that they are all intended to reverse Supreme Court decisions in which Justice Stevens was in dissent.  In fact, much of the book consists of Stevens rehashing or quoting from his dissents, which makes the book a bit of a slog despite its short length.  The other linkage is that each amendment increases the power of government, and of the federal government and of federal judges in particular.  As we will see, this latter observation bears on the drafting of Stevens’ proposals.

So, let’s look at the proposals.  Rather than follow the order in the book, this post will take them in order of their level of public controversy.

Gun control.  Stevens proposes amending the Second Amendment to read (changes are in bold): “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms when serving in the Militia shall not be infringed.”  The change is designed to override the Supreme Court decision in Heller v. District of Columbia which recognized an individual right to bear arms, and somewhat limited restrictions on gun ownership.  Stevens’ change is based on the view that the Second Amendment was only about preserving state militias from federal interference, not protecting an individual’s right to arms.

Of course, since state militias do not exist anymore (having been superseded by the National Guard and local and state police), Stevens’ proposal is completely disingenuous.  It is simply a way of repealing the Second Amendment without having the courage or honesty to forthrightly state that that is his objective.  Cute drafting tricks like this to avoid being straight about the intent of the language are always a bad idea, because they can trip you up in unexpected ways.  For example, does this mean that a state militia member has an absolute right to his weapon even if his own militia officers order him or her to disarm?  And what prevents a pro-gun rights state from recreating the old-style militias, in which every adult in the state was deemed a member of the militia and could be required to maintain arms at all times?  Then Justice Stevens’ amended Second Amendment would assure the maximum possible distribution of firearms, which is definitely not the result he intended.  (Update:  In 2018 Stevens has come out for outright repeal of the Second Amendment.)

(Many on both sides of the gun control/rights debate agree that it might be worthwhile to clarify the Second Amendment.  Chapter 10 of Timely Renewed includes several versions of possible clarifying amendments that forthrightly reflect the various approaches.)

Campaign Finance.  Stevens proposes an amendment reading “Neither the First Amendment nor any other provision of this Constitution shall be construed to prohibit the Congress or any state from imposing reasonable limits on the amount of money that candidates for public office, or their supporters, may spend in election campaigns.”  The word “reasonable” is one of lawyers’ worse drafting cheats.  It is the word you stick in when you can’t really agree, and need to smooth over a point.  Basically, it is the parties saying “we’ll let the judge decide if it ever becomes a problem.”  We get away with it in contracts because the vast majority of contracts never get disputed, and rarely go to court.  However, this constitutional provision is certain to be litigated extensively.  So, what Stevens is saying by inserting the cheat word “reasonable,” is that judges will dictate what campaign finance laws should be.  Aside from the substantive problem this presents of increasing the power of unelected federal judges over our most fundamental democratic act, this is poor drafting for a lot of reasons.  One is that legislators and people running for office will never really know what the campaign finance rules are since court decisions come after the fact.

Another problem is that, ironically, the purpose of the proposed amendment is to reverse the Court’s decision in Citizens United v. FEC, which allowed corporate bodies such as businesses and labor unions to spend money expressing their views on election issues.  Reasonableness is a sufficiently vague standard that a future court could readily find that the campaign finance laws struck down in the Citizens United case were unreasonable, and still invalid.  This is an important point for anti-Citizens United amendment proponents, because the Democrats’ proposed amendment introduced in the last Congress included Stevens’ “reasonable” requirement.

Death Penalty.  Stevens would amend the Eighth Amendment as follows (new words in bold):  “Excessive Bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments such as the death penalty inflicted.”  If you want to abolish the death penalty that’s fine, but “such as”?  What punishments are “such as” the death penalty?  “Such as” is language that a draftsman uses when he or she is too lazy or dumb to think through the possible scenarios.  Once again, by introducing unnecessarily vague language, Stevens is basically saying that judges will decide if something is sufficiently close to the death penalty to be “such as” it.  Considering the finality of the death penalty, one wonders what punishment might meet this standard.

In fact, while eliminating the death penalty, this language might actually loosen the limitations for other harsh punishments by being found to define “cruel and unusual.”  A court could rationally find that anything that was not life-threatening “such as the death penalty” was not “cruel and unusual.”  Current news brings to mind waterboarding as an example.  Since our intelligence agencies are so convinced of its efficacy in foreign situations, why not use it to interrogate convicted prisoners?  Harsh as it is, properly administered it is apparently not fatal “such as the death penalty.”  The Eighth Amendment terms “cruel and unusual” are already vague enough without introducing more uncertainty into this important provision of the Bill of Rights.

Political Gerrymandering.  Stevens proposes this amendment to restrict the long-standing practice of drawing legislative districts to favor the political party doing the drawing:  “Districts represented by members of Congress, or by members of any state legislative body, shall be compact and composed of contiguous territory. The state shall have the burden of justifying any departures from this requirement by reference to neutral criteria such as natural, political, or historical boundaries or demographic changes. The interest in enhancing or preserving the political power of the party in control of the state government is not such a neutral criterion.”

Any lawyer who could not drive a semi-trailer through a loophole as broad as “criteria such as natural, political, or historical boundaries or demographic changes” should lose their law license.  And if all of those gaps were not enough, there is “such as” again to allow a court to find any other criteria acceptable.  I am especially keen on this issue because I wrestled with the problem of an anti-gerrymandering amendment when writing Timely Renewed.  My conclusion was that the only amendment which could not be circumvented was one with arithmetic standards.   (My proposed anti-gerrymandering amendment is in chapter 11 of Timely Renewed.  It provides a simple numerical formula to define acceptable compactness of legislative districts.)  Justice Stevens’ amendment is too vague to be meaningful, which means that the intensely political decision of legislative redistricting would be decided by judges rather than democratically accountable legislators.

Sovereign Immunity and the “Anti-Commandeering Rule.” Stevens’ other two proposals are really quite arcane.  One is to bar state governments from having “immunity from liability for violating any act of Congress, or any provision of this Constitution.”  The other is to allow the federal government to give orders to state officials by subjecting “public officials” to the “supremacy” clause in Article VI of the Constitution.  I will not bore either you or me with the arcana behind these proposals.  It is worth noting that even someone as sympathetic to Stevens’ ideology as Cass Sunstein does not think that these are important enough to require constitutional amendment.

I will only note that, with both of these proposals, Stevens commits another too common drafting error.  When parties are immersed in a deal point, they can write it into the contract in a shorthand which they both understand but which oversimplifies a sometimes complex understanding.  I could not count the times I have given the little spiel about how the contract has to be comprehensible to someone who knows nothing about the deal, and therefore sometimes points which are obvious to the parties to the negotiations have to be spelled out in some detail in the contract.  While a constitutional amendment in particular has to speak in general language, in doing so Stevens has failed to spell out his specific objectives, and thus opened wide possibilities for alternate readings.

For example, it does not follow from subjecting state officials to the supremacy clause that federal officials can give them orders just by virtue of being federal officials.  A court could easily interpret Stevens’ revised supremacy clause to mean just that state officials can not violate federal law, which is different than empowering federal officials to command the services of state officials (all without compensating the states for the officials’ time by the way).  Similarly, simply saying that state officials are not immune from liability does not say what kinds of liability that covers.  Liability is a very complex area of law, and Stevens’ proposed language could be read to still bar the kinds of lawsuits he wants to allow.

This same problem runs through Stevens’ other proposals as well.  He is too immersed in the arcana of the Supreme Court decisions to which he is objecting to step back and see how else his language might be interpreted.  As a Supreme Court justice, he grew used to having lawyers parse his lengthy opinions for the fine points of his rulings.  In their opinions, Supreme Court justices can elaborate at length on the meaning of their rulings because those opinions are the law.  I have to wonder if Justice Stevens quite realizes that his book is not a Supreme Court opinion.  Future courts will not be bound by his book the way they theoretically would be by his Supreme Court opinions.  Consequently, his proposed amendments would have to stand on their own careless wording, unassisted by his explications in Six Amendments.

Of course, it is possible that his objective with this too often vague and imprecise language is to put more power into the hands of federal judges.  However, this lawyer, for one, thinks that federal judges already have entirely too much power, and can pass on Justice Stevens giving them even more.

In U. S. vs. Windsor the Court struck down part of a 1996 law called the Defense of Marriage Act (DOMA) which was passed with overwhelming bipartisan support in Congress and signed by Bill Clinton.  In Hollingsworth vs. Perry, the Court let stand a far–reaching decision by a federal court in San Francisco which struck down a provision which had been added to the California state constitution by a ballot initiative in 2008 called Proposition 8 to preserve the traditional definition of marriage as a monogamous heterosexual union.  In these cases, not only did both California Governor Arnold Schwarzenegger and Attorney General (and now Governor) Jerry Brown in the Prop 8 case and President Barack Obama and Attorney General Eric Holder in the DOMA case fail to defend those laws in court, but they sided with the plaintiffs in arguing that the laws were unconstitutional.

This left the laws without defenders to argue the cases vigorously, and to appeal adverse lower court decisions.  In Hollingsworth, the Prop 8 case, the Court ruled that Prop 8’s proponents could not appeal anti-Prop 8 rulings by the federal district court in San Francisco and Ninth Circuit Court of Appeals.  This left in place the decision by district court Judge Vaughan Walker that Prop 8 violated the “equal protection” clause of the 14^th Amendment.  Even the left-leaning Ninth Circuit Court of Appeals had rejected that argument (which would impose gay marriage nationwide).  Yet, by dismissing the rights, or “standing,” of the Prop 8 proponents who had tried to appeal that decision, the Supreme Court left in place that most radical of decisions.  The Supreme Court’s decision is even more untenable in light of the unanimous ruling by the left-leaning California supreme court that under California law the Prop 8 proponents did have the right to appeal.

In contrast, in the DOMA case the Supreme Court was able to get past the standing technicalities and rule on the substance, even though many legal experts considered the standing issue in the DOMA case to be much more problematic than in the Prop 8 case.  Here, because the Obama administration had refused to properly defend the law the House of Representatives had entered on the appellate level.  However, that left DOMA’s defenders on appeal arguing on a lower court record where the Obama/Holder Justice Department had only made a weak and half-hearted defense of the Defense of Marriage Act.

The California state constitution requires that its public officers take an oath to “support and defend” the California constitution (which includes Prop 8), and the United States constitution requires that the President swear to “preserve, protect and defend” the Constitution, which extends to laws validly enacted under the Constitution such as DOMA.   By ignoring this abject refusal by the constitutionally responsible officeholders to fulfill their constitutional duties, the Supreme Court has condoned a frightening expansion in executive and judicial power at the expense of the power of the people and the integrity of the Constitutions of both the United States and the state of California.  A President or governor who does not like a law no longer has to go through the constitutional hassles of having it repealed by the legislature.  All she or he needs to do is decline to defend the law when it is challenged by her or his ideological allies, and let unelected and unaccountable judges repeal the law.  Some argue that an executive does not have to defend a law which she or he feels is unconstitutional.  However, the integrity of the rule of law should then require that some provision be made for the law’s proper defense.

In California there was some effort to do this by allowing Prop 8’s proponents to belatedly defend it.  However, now the Supreme Court has ruled that the citizenry have no right to defend their own laws.  This will completely gut the power of initiative and referendum, which many states have enacted precisely in order to create a democratic check on government officials.  Now all these officials need do to thwart the referendum process is make an anemic or no defense before a friendly lower court judge, and then cite Hollingsworth to deny the people the right to appeal to higher courts.

(In the Prop 8 case, even though the proponents of the law were eventually allowed to defend it, they were never officially designated by the state, a weakness which severely undermined their ability to mount a proper defense, especially against a hostile judge who kept secret his personal interest as a partnered gay man in the outcome of the case.  And, of course, the Supreme Court ruled that the proponents’ lack of official status was fatal to their right to appeal.)

In the Windsor decision, the Supreme Court further abetted executive branch gamesmanship by allowing the Obama/Holder Justice Department to appeal the decision even though the district court had decided in favor of the Obama/Holder Justice Department’s anti-DOMA position.  While the Supreme Court did allow the House of Representatives to enter and appeal the decision, this was of little use because the House was not allowed to argue the case in the district court where the principal factual decisions about a case are made.

The issue was not unnoticed.  In the oral arguments in March, several justices expressed concern over this aspect of the cases.  Justice Kennedy noted that an executive branch decision to not defend a law results in a form of back-door repeal, a “ratchet” which favors the executive branch.  Justices Sotomayor and Alioto both wondered how a law would be defended if the executive branch refuses to do it.  

Instead of enabling Messrs. Brown, Obama and Holder to shirk their constitutional duties, the Supreme Court should have dismissed both gay marriage cases all the way to and including the pro-gay marriage district court decisions.  Democratically and constitutionally enacted laws should not be overturned without the benefit of a strong and official defense. If government executives do not wish to do so, they should be required to officially designate another party to undertake the defense, something which did not occur in either of the gay marriage cases.

This executive abuse of power should be of concern to progressives as well as constitutional conservatives.  Consider a plausible counter-factual.  Suppose Mitt Romney had won the presidency in the last election but the Democrats retained control of the Senate.  The Democrat Senate would have blocked an outright repeal of the Affordable Care Act.  However, a Romney administration could have achieved the same result by conceding the Affordable Care Act’s unconstitutionality in the many cases against that law, using the courts to make an end run around the constitutional requirements for its repeal by Congress.

The failure of the Supreme Court to impose a positive obligation on state and federal executives to actively defend all laws in federal court challenges has now established a dangerous precedent.  Legal ethics require that lawyers “zealously” represent their clients, and constitutional officials should be held to the same standard in defending the peoples’ laws.  My law school federal civil procedure professor, Ruth Bader Ginsburg, taught us that a vigorous adversary process was essential to assuring the just functioning of our common law system.  Justice Stephen Breyer has argued eloquently that the Supreme Court should seek in its decision-making to promote democratic governance.  Requiring that the executive branch vigorously defend all laws, or formally delegate others to defend laws of which it disproves, assures a complete consideration of important issues, forestalls a dangerous increase in executive power, and shows the respect due to democratically enacted laws.

 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.