THE NOTION of a living Constitution—especially when coupled with developmental or evolutionary notions—is one of the central metaphors, not to say clichés, of American constitutionalism. It is hard to find anyone who is truly willing to reject it, given that the alternative seems to be a dead Constitution, an option that has few, if any, public supporters. Still, as Justice Rehnquist once said, “The phrase ‘living Constitution’ has about it a teasing impression that makes it a coat of many colors,”1 not all of them, it may be presumed, equally pleasing to the eye (or to the analytical temperament). Still, even Rehnquist was willing to quote, with apparent endorsement, Justice Holmes’s famous 1920 statement that the framers of the Constitution had performed “a constituent act,” “call[ing] into life a being the development of which could not have been foreseen completely by the most gifted of its begetters.”2
The “organism” that was conceived in Philadelphia thus took on a life of its own; like most children, it grew up in ways that might well surprise (or, indeed, shock) its parents. Not for Holmes is a sterile form of “originalism” that would limit constitutional meaning to the first-order “intentions” of the Framers, their specific hopes and dreams as to how their progeny might develop. Instead there is due recognition of those later developments that in turn require more expansive and generous interpretation of the Fathers’ handiwork than would ever have been imagined (or tolerated) at the time of 1787 conception or birth via the state ratifications of 1787–88. Interestingly enough, as perhaps is suggested by the very reference to Rehnquist, it is hard to find someone who does reject this version of the Holmesian insight. The most noted proponent of “the jurisprudence of original understanding,” Robert Bork, most certainly does not, as witnessed by his insistent, and presumably heartfelt, argument before the Senate Judiciary Committee that Brown v. Board of Education,3 however surprising it might have been to the actual proponents of the Fourteenth Amendment, was perfectly consistent with what he has termed the “only” legitimate approach to constitutional interpretation.4
What Bork and other “originalists” object to is not the fact of organic development as such, including the surprises sometimes presented by the fragile child who turns out to be a strapping mountain climber. Rather, what they oppose is the de facto creation—or substitution—of a new organism on the basis that the earlier one turns out to suffer from congenital defects. Similarly, even one willing to use developmental metaphors might nonetheless profess to be able to distinguish between, on the one hand, development that, however unexpected (and thus unforeseen), can be shown to have been generated in substantial part by the organism’s internal structure and, on the other hand, outright mutation generated by exogenous causes. It is not the case, of course, that such changes cannot occur, but the argument is that, precisely because they are genuine transformations—and not simply the product of what was truly immanent within the Constitution—they must be the product of a distinctive birth process of their own. One label we might apply to these transformations is “amendment”; concomitantly, we might focus on the specific procedures necessary to legitimate them.
Acquaintance with the ordinary operations of the American legal system makes us aware of the crucial contrast typically offered between ordinary development by “interpretation” and extraordinary development by “amendment.”5 The former is, almost by definition, unexceptional; the latter signifies something out of the ordinary, something truly new.6 Thus the Supreme Court, through Felix Frankfurter, insisted that “nothing new can be put into the Constitution except through the amendatory process. Nothing old can be taken out without the same process.”7 “New,” in this context, is clearly a term of art, since presumably no one, most certainly including Frankfurter or, for that matter, Robert Bork, would deny that law could quite dramatically, and legitimately, change and in that sense be “new”—different at time T+1 from what was the case at time T. So it is not change per se that is at the heart of Frankfurter’s assertion. The contrast between interpretation and amendment, rather, is akin to that between organic development and the invention of entirely new solutions to old problems. From this perspective “interpretations” are linked in specifiable ways to analyses of the text or at least to the body of materials conventionally regarded as within the ambit of the committed constitutionalist.8 “Amendments,” however, are something else.
Perhaps the simplest way of conceptualizing what we mean by an amendment is to describe it as a legal invention not derivable from the existing body of accepted legal materials. As Will Harris writes, “The persistent possibility of amendment inescapably implies precisely the boundedness of the constitutional order at any time.” The Constitution “could contain what it does not,”9 or, concomitantly, could have taken away from it what it now contains; presumably, though, either the adding or the taking away would require amendment. Consider in this context James Madison’s plaintive argument to the First Congress, while attacking the legitimacy of chartering the first Bank of the United States, that the Constitution must be interpreted within an ideological framework that accepts as “the essential characteristic of the Government” its composition only from “limited and enumerated powers.” By way of exemplifying his view that “no power, therefore, not enumerated could be inferred from the general nature of Government,” he stated that “had the power of making treaties … been omitted, however necessary it might have been, the defect could only have been lamented, or supplied by an amendment of the constitution.”10
If one needs additional proof of Madison’s sincerity about distinguishing between what is constitutionally authorized and what would require amendment, it is surely provided by his 1817 veto of a bill providing for internal improvements. He readily acknowledged “the great importance of roads and canals” and the “signal advantage to the general prosperity” of their improvement. Yet he saw the bill as going beyond the enumerated powers, even as he confessed to “cherishing the hope that its beneficial objects may be attained by a resort for the necessary powers” to the procedures “providently marked out in the instrument itself [as] a safe and practicable mode of improving it as experience might suggest.”11 Madison thus had no principled political objection to federally financed internal improvements; he simply believed that Congress was without power to call them into being until the American people, operating through accepted procedures of amendment, fabricated new powers for the national government.
Such notions of what Judge Cooley called “constitutional limitations” are, of course, not confined to the United States. Thus German Chancellor Helmut Kohl justified the refusal of his country to send troops to the Persian Gulf by reference to the prohibition by the German Constitution of deployment of German troops outside the territory of the North Atlantic Treaty Organization. Kohl ostensibly regretted this situation and, according to one journalist, “advocate[d] a constitutional amendment specifically allowing German troops to join international alliances.”12
In many contexts, therefore, to describe something as an amendment is at the same time to proclaim its status as a legal invention and its putative illegitimacy as an interpretation of the preexisting legal materials. To designate something as an interpretation, on the other hand, even if one is ultimately not persuaded by it, is to accord it a certain legal dignity that is absent if one rejects the very possibility of its having been offered as a “good faith” exercise in interpretation. If one doubts the presence of good faith, or equally if one accepts interpretive sincerity but finds the actual effort to be manifestly incompetent, then one will be tempted to describe what is being offered as a surreptitious attempt to “amend” the Constitution without going through the approved procedures by which inventions are accepted into the constitutional fabric.13 This may be what Madison meant to suggest when he stated that “it was not possible to discover in [the Constitution] the power to incorporate a Bank,”14 which is somewhat different from saying simply that he was not persuaded by Alexander Hamilton’s ultimately successful defenses of congressional power. A pervasive problem in analyzing legal rhetoric, of course, is knowing when statements should be read as mere hyperbole—consider a recent comment by a dissenting Supreme Court justice that the majority’s position “makes no sense”15—or as something presumably far more serious, challenging either the professional competence or moral integrity of those who reject one’s own proffered interpretations.
Anyone interested in constitutional hermeneutics can profit from asking what sorts of changes in our political system could, on the one hand, be authorized through ordinary legislation or judicial interpretation (or, for that matter, activity by the executive branch in the absence of explicit statutory authorization) and what sorts, on the other hand, would require the inventiveness of “amendment.” For example, given the language of Article II, section 1 that “no person except a natural born Citizen … shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years,” could Congress simply authorize by legislation, or the Court otherwise legitimize through judicial decision, the election as president of a foreign-born twenty-three-year old? Most analysts, I dare say, would believe this to be impossible, suggesting that this is a paradigm instance where “amendment” would be necessary and plausible “interpretation” unavailable. Although this may in fact be open to dispute, as Anthony D’Amato has cleverly argued,16 the point is not what can logically be done with language, or even the quite remarkable changes over time in what will be accepted as an interpretation of a given text. Instead, as participants in a practice of legal discourse, we are necessarily concerned with what most persons at any specific time within a given interpretive community will, on the one hand, accept as “legitimately assertible”17 or, on the other, reject as “off the wall” and indicative of an inability to understand the working conventions of our constitutional system.18 One of these conventions, I believe, is the distinction between interpretation and amendment and the entailed position that not everything can legitimately be inferred at any given moment from preexisting legal materials, at least if one wishes to retain membership in any existing “community” of interpreters.
Though I am primarily interested in raising our consciousness about how we construct in our constitutional discourse the boundaries between interpretation and amendment, I should note that the latter is a gross category that can itself be subjected to further refinement. Several of the essays in this collection, for example, discuss Walter Murphy’s argument, adopted from West German (now presumably German) constitutional law, that a true “amendment” does not “materially change” the preexisting structure of government, but merely “supplements” or otherwise perfects the structure.19 Murphy’s argument, albeit unusual in the contemporary context, is not original.
As early as 1865, during congressional consideration of what became the Thirteenth Amendment, which abolished slavery, opponents leveled attacks on the constitutional propriety of any such amendment. Representative C. A. White, for example, presented “the very term ‘amendment’ [as] itself a word of limitation,” disallowing a “plenary, omnipotent, unlimited power over every subject of legislation.”20 Representative White therefore condemned the proposed amendment for invading the entrenched powers of the state to control property and domestic institutions. Interestingly, White’s colleague Representative Boutwell, a warm supporter of the amendment, agreed with White’s theoretical proposition that the amendment power was not unlimited. Thus he suggested that Article V did not authorize amendments that would “establish slavery, or … invite the King of Dahomey to rule over the country” insofar as this would contravene the purposes of the Constitution as laid out in the Preamble.21 As John Vile elaborates in his essay in this volume, similar arguments were made earlier in this century by William Marbury and Selden Bacon before being revived more recently by Murphy and a group of contemporary scholars.
Our difficulties are not over, though, even if, by conceding that a particular change does not constitute a revolutionary transformation, we can finesse the question of inherent limits on constitutional amendment. Consider the fact that a number of states in the western United States, which include the popular initiative as a process of constitutional amendment, distinguish in the texts of their constitutions between “amendment” and “revision,” the former amenable to the initiative process, the latter, presumably more fundamental, not so.22 This distinction was at the heart of Raven v. Deukmejian,23 a 1990 decision of the California Supreme Court that concerned the legitimacy of Proposition 115, passed by popular referendum, which required multiple changes in California’s criminal code in both its substantive and procedural aspects.
Among the challenges mounted against Proposition 115, the most important, for present purposes, was predicated on Article 18 of the California Constitution, which, while allowing California’s “electors” to “amend the Constitution by initiative,” goes on to require that a “revision” of the Constitution first be proposed either by a constitutional convention or by the legislature prior to popular ratification. The court pronounced one section of the proposition just such a “revision”—presumably substantially more transformative than a mere “amendment”—and therefore invalidated it, given its origin simply through popular initiative. As a “comprehensive change,” it required “more formality, discussion and deliberation than is available through the initiative process.”24
So we now have, at the very least, the following spectrum of possibilities in regard to describing any given legal development:25
1. It is, especially if the result of a judicial decision, simply a recognition, called “interpretation,” of what was already immanent within the existing body of legal materials;
2. it is, whether a statute passed by a legislature, an executive order, or an administrative regulation, a change not disallowed by the constraints established by the Constitution and thus what might be termed a permissible “interpretation” of the powers allowed governmental actors by the Constitution;
3. it represents a genuine change not immanent within the preexisting materials or allowable simply by the use of the powers granted (or tolerated) by the Constitution, although the change, being relatively marginal, is unproblematically described as an “amendment”;
4. it represents a genuine change of such dimension as to be described as a “revision”—i.e., a special kind of amendment—but that change, nonetheless, is congruent with the immanent values of the constitutional order and is therefore otherwise unproblematic, assuming compliance with whatever constitutional procedures are established in regard to such “revisions”; and
5. it represents a change of such fundamental dimension, sufficiently alien from any conception of the immanent preexisting order, as to be best described as “revolutionary” and thus taken out of the language of amendment and legitimated, if at all, by some extraconstitutional set of events.
Lest we think that this full range is found only in state constitutions such as those of Colorado or California, I note that William Harris has argued that the multiple paths to constitutional amendment set out in Article V of the U.S. Constitution—including the possibilities of proposal by national constitutional convention and ratification by state conventions, in addition to proposal by Congress and ratification by state legislatures—are not in fact all equal. Those amendments that are truly transformative of the established political order, Harris argues, should require, in order to be legitimate, running the gauntlet of either a national convention or state conventions.26
All of these distinctions merit more discussion. What follows, however, will concentrate only on the difference between the clarification of what is immanent that we call “interpretation” and the addition to, or at least limited transformation of, what is immanent through amendatory change. We come now to the implication of the term amendatory change, consideration of which will benefit from a return to the controversy about the United States Bank already evoked by reference to James Madison.
Perhaps the most majestic single opinion of the U.S. Supreme Court in its two-century history is John Marshall’s opinion upholding the constitutionality of the Second Bank of the United States in McCulloch v. Maryland.27 Although it concerned only the second Bank—the first Bank had expired in 1811—I think it is fair to describe McCulloch as an advisory opinion that the first Bank was perfectly constitutional as well, thus joining the First Congress in rejecting Madison’s heartfelt advice that it was not permitted by the new frame of government. Just as important, of course, is the host of congressional legislation that could now be passed under the broad reading of national powers articulated by Marshall, who took the occasion to spell out an overarching theory of national power that can be read as assigning basically plenary authority to Congress. Surely one of the most famous quotations, not only in McCulloch but in our entire corpus of judicial writings, is Marshall’s emphasis that he is expounding “a constitution intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.”28 Interestingly, the word Marshall emphasizes is crises. I prefer, on the other hand, to put a bit more stress on the word adapted.
The theory, even if not the particular result, of McCulloch concerned, indeed appalled, many eminent Americans of the time, including James Madison himself. Although he had acquiesced in the constitutional legitimacy of the bill establishing the second Bank, which he had signed as president, he had never formally repudiated his opposition, on constitutional grounds, to the first Bank, and he was clearly disturbed by the breadth of Marshall’s opinion, especially the key avowal that “all means which are appropriate [to any constitutionally authorized end], which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the constitution, are constitutional.”29 Writing the great Virginia Justice Spencer Roane following McCulloch, Madison wondered what might have happened some three decades earlier had the supporters of the new Constitution frankly articulated “a rule of construction … as broad and pliant as what has occurred.” He could not “easily be persuaded that the avowal of such a rule [at the state ratifying conventions] would not have prevented its ratification.”30
Consider in this context, then, James Boyd White’s somewhat laconic comment that Marshall’s opinion in McCulloch “seems to be less an interpretation of the Constitution than an amendment to it, the overruling of which is unimaginable.”31 The “amendment” presumably involves not the legality of the bank per se, for there are a number of routes by which that could have been upheld,32 but rather the doctrine by which Marshall justified it, which operated to give Congress (and the national government) far more power than would have a more limited reading of the Constitution.
It is crucial that White, who is unusually careful in his use of language, does not appear to be leveling a criticism against either the opinion or Marshall, even as he offers a kind of support to Madison’s skepticism about the provenance of Marshall’s analysis. White, that is, comes truly to praise Marshall rather than to criticize, let alone bury, him. But if we agree with White—if we share both his perception of McCulloch as a de facto amendment and his willingness to commend Marshall’s performance in that case—then we need to integrate that understanding into the contemporary debate about constitutional interpretation.
This debate in substantial measure concerns the limits on the authority of constitutional interpreters, whether judges or others. It was Marshall, of course, who in Marbury v. Madison had defined the importance of a written constitution—the “greatest improvement on political institutions” put forth by the new American nation—as consisting in the specification of powers (and limits) of the government.33 The problem, of course, is how we decide disputes about what the “writing” actually means. Is McCulloch an example of remembrance or forgetting? And does Marshall exhibit a mastery of judicial craft or a much more ominously Nietzschean—or Humpty-Dumptyish—mastery of text and language?34 In any case, we must decide on our own appellation for Marshall’s exercise in constitutional argument in McCulloch. Marshall’s own word, presumably, would be (permitted, perhaps even compelled) adaptation; White’s is amendment. Thomas Jefferson, always more plain-spoken, might well have chosen usurpation,35 especially given his description in 1820 of the federal judiciary as a “subtle core of sappers and miners constantly working under ground to undermine the foundations of our confederated republic.”36
The problem posed by Marshall and McCulloch is, of course, repeated in many other cases. Consider, as only one example, another foundational case of our constitutional order, the 1934 decision in Home Building & Loan Association v. Blaisdell,37 which interpreted the constitutional text stating that “no State shall … pass any … Law impairing the Obligation of Contract” in effect as meaning that states were prohibited only from passing laws unreasonably impairing such obligations, but that impairments deemed necessary to important state ends were legitimate. Though the opinion by Chief Justice Hughes is suffused with reference to the “emergency” facing the nation, he blandly insisted that “emergency does not create power” but provides only the “conditions” for exercising otherwise legitimate power.38 Among other things, this meant, in spite of Justice Sutherland’s demonstration that the categorical textual language was the product of the Framers’ strong desire to forestall debtor relief legislation by the states precisely in economic downturns such as the Great Depression, that no formal amendment was necessary in order for the Minnesota legislature to be able to meet the threat to economic stability posed by the Great Depression; ordinary interpretation sufficed to supply the needed authority. It should be obvious, though, that one could describe the result in Blaisdell, and its justification by Hughes, in the terms White applied to Marshall’s opinion in McCulloch.
So how do we—should we—describe the opinions in McCulloch and Blaisdell if given the forced choices of “interpretation” and “amendment”? Are there formal criteria, teachable by constitutional adepts, to be learned by students of the Constitution, that will allow us to agree, as a presumed “factual” matter, on what constitute “interpretations” and “amendments”? (We could still disagree, of course, on the “value” attached to any particular proffered example.) What might the answers to these questions, in turn, tell us about our overarching topic—the implications for constitutional theory of grappling with the issue of constitutional amendment?
I thus finally arrive at an explanation of the title of this essay and its request that the reader pronounce a view as to the number of amendments to the U.S. Constitution. If White is correct and the doctrine enunciated—indeed, the constitutional reality brought into being—by McCulloch is “in fact” an amendment to the Constitution, then it would seem to follow that the answer to my multiple choice question cannot be either “(b)” or “(c),” that is, “26” or “27,” depending on the stance one takes toward the so-called Twenty-seventh Amendment,39 however common (or ostensibly “commonsensical”) those answers might be. Or, more precisely, it might be said that the answer would be “26” or “27” only if by some sheer coincidence one of them turned out to be the final number after applying a sophisticated theory of constitutional amendment, whose elucidation is the central purpose of this essay. In my multiple choice test, “26” and “27” refer simply—and, I want to argue, merely—to what are best termed the number of explicit textual additions to the canonical 1787 text of the Constitution.40
What I argue, then, is that it is almost literally thoughtless to believe that the best answer to my conundrum is either “26” or “27,” at least if one means to be engaging in a genuinely interesting theoretical discussion. The only question to which one can be confident that either would be the best answer is “how many explicitly numbered textual additions to the Constitution have occurred since 1787?” Perhaps it is part of a kind of “cultural literacy” to know that the answer to that question is either “26” or “27.” (I have little doubt that most persons would in fact say the latter, given the acquiescence of both the executive and the Congress to the legitimacy of the Twenty-seventh Amendment.) But that answer, without more, demonstrates a theoretical impoverishment of imagination that is far more alarming than would be the failure to remember several of the numbered textual additions. Knowing the “correct” number of the latter demonstrates no more comprehension of American constitutionalism than does the knowledge of precisely how many different individuals have served as vice-president (knowledge that I happily admit I do not have). Central to understanding the practice of American constitutionalism, whether as lawyer, political scientist, or historian, is recognition, and concomitant theoretical assimilation, of the extent to which the Constitution has indeed been amended—been the subject of political inventiveness—by means other than the addition of explicit text.41
The reader could certainly be excused for believing, on the basis of my harsh criticism of offering “26” or “27” as the answers, that the answer at least cannot be “(a) fewer than 26.” This would seem to follow from the proposition that there have been at least twenty-six numbered textual additions plus at least one more (e.g., Marshall’s opinion in McCulloch), which suggests that the best answer is therefore “(d) more than 27,” assuming that one accepts the legitimacy of the Twenty-seventh Amendment. Alas, I do not think that “(a)” can be rejected as the best answer quite so easily.
How can this be, given the existence of (at least) twenty-six numbered textual additions? The answer lies in determining if all of them genuinely differed from what was already immanent in the preexisting understandings of the Constitution. Some of them, that is, might simply have “declared” or “recognized” what was already there and what would readily be grasped by anyone with interpretive insight into the Constitution. There is no reason, I am arguing, to call a numbered textual addition a genuine “amendment” unless it truly changes the preexisting legal reality.
One might argue, though, that the very existence of the numbered textual additions is presumptive evidence that they were indeed thought to be required and that interpretation would be unavailing to bring the particular legal reality about. Phrased this way, the proposition is basically a historical one, making a claim about the likely views of the text’s authors as to its “necessity.” But it seems quite clear that even supporters of several of the textual additions believed that they in fact added nothing to the meaning of the Constitution, if correctly understood.
Consider in this context the great debate about the “necessity” of adding a “Bill of Rights” to the 1787 Constitution. Supporters of the Philadelphia handiwork insisted that no such additions were required to achieve the ends articulated by anti-Federalists, for the national Constitution, unlike its state counterparts, was ostensibly adopted under a theory of “assigned power.” That is, the national government was not presumptively plenary, lacking only that power specifically excluded by the foundation document; instead, its power was limited only to what was plausibly granted by the constitutional text. Thus Hamilton, attacking those who criticized the Constitution for lacking a bill of rights, argued in The Federalist, No. 84, that no one could seriously believe that Congress could have the power to regulate the press, given that it was nowhere assigned any such power. “The constitution ought not to be charged with the absurdity of providing against the abuse of an authority, which was not given.”42 A similar argument was offered by James Wilson, who played a far more important role than Hamilton at the Philadelphia convention and who became one of the first members of the Supreme Court. Wilson, responding to Philadelphia citizens who demanded the addition of specific protection of freedom of the press, stated that “the proposed system possesses no influence whatever upon the press; and it would have been merely nugatory, to have introduced a formal declaration upon the subject.”43
Indeed, to call it “nugatory” might be to compliment the First Amendment. James Iredell, who would join Wilson on the Supreme Court, told his fellow ratifiers in North Carolina that it would be “not only useless, but dangerous, to enumerate a number of rights which are not intended to be given up; because it would be implying, in the strongest manner, that every right not included in the exception might be impaired by the government without usurpation.”44 From this perspective, the addition of what we know as the First Amendment does indeed drastically change the constitutional understanding, though not by prohibiting Congress from regulation of speech or the press, which it lacked power to do in any case. Rather, the transformation comes by implicitly adding to Congress’s powers the ability to regulate everything that is not specifically named in the Bill of Rights.45
If one accepts the more moderate version of the Hamilton-Wilson argument, though,46 then the First Amendment is rendered wholly “unnecessary” and adds nothing whatsoever to the 1787 Constitution.47 Proper interpretation of the 1787 document would preclude conscientious members of Congress from passing, the president from signing, or the judiciary from enforcing a bill abridging speech, establishing a national church, or whatever, inasmuch as such power was not specifically assigned the Congress in Article I. It may be jarring to suggest that the First Amendment contributes nothing, strictly speaking, to the legal protection of fundamental liberties, but this may be evidence only of the distance we have traveled from the original understanding of the Constitution as creating only a limited government of assigned powers. In any event, there is no reason to believe that even all of the representatives who voted for the First Amendment did so in the belief that it was “required” in order to preserve the liberties enunciated. They might just as likely have believed that it was required as a political gesture to anti-Federalists who might, if not appeased, use the very procedures of Article V to bring into being a new constitutional convention that would reconsider the Philadelphia document narrowly ratified by the state conventions.48
It may be a nice thing to have a clear specification of the inability of Congress to regulate the press or establish a religion, but that is a stylistic, more than a legal, insight; nothing legally would be lost, according to the Hamiltonian argument, by the absence of the amendment. From this perspective, as a matter of law the amendment may be little more than a “guide to the dimwitted” who need the aid of textual specification even though the rest of us would arrive at precisely the same destination through the use of acceptable techniques of constitutional interpretation.
There is one other, more generous, explanation that might be offered, though even it scarcely supports the “necessity” of the amendment. Akhil Reed Amar has noted the importance that James Madison placed on the inclusion of “fundamental maxims of free government” within the constitutional text as a means of popular education.49 Hamilton rather acerbically dismissed such didactic “aphorisms which make the principal figure in several of our State bills of rights,” deeming them more suited to “a treatise of ethics than … a constitution of government.”50 Perhaps one finds Madison a better guide to constitution writing than Hamilton, and this would make the addition of the First Amendment to the Constitution of some genuine political significance in terms of the socialization of the citizenry, surely no small point for those concerned with maintaining, as well as “founding,” a constitutional republic. But the rigorous lawyer would presumably find this of relatively little importance when trying to decide its legal significance.
One may resist the view that the First Amendment adds nothing of legal importance to the Constitution. But surely it is difficult to disagree with Madison’s own concession that the Tenth Amendment “may be considered as superfluous.”51 Consider in this context the careful statement by Justice Rehnquist that “an express declaration” of federalistic limits on congressional power “is found in the Tenth Amendment,” rather than, say, “granted” or “established” by that amendment.52 Amar notes that “the congressional resolution accompanying the Bill [of Rights] explicitly described it as containing ‘declaratory’ as well as ‘restrictive’ provisions,”53 which seems logically to imply that whatever the function of the former, it is not to change the preexisting legal reality.
Imagine, then, asking supporters of a textual addition to indicate precisely why they thought it was required. It is far different to say, on the one hand, “because the Constitution cannot legitimately be interpreted to allow X, and the new text will authorize X,” or, on the other, “because even though the Constitution, correctly interpreted, already contains X within it, we nonetheless should add a patch of text either to control the stupid or politically malevolent adjudicator or to educate the citizenry who look to the Constitution for memorizable maxims of government.” To take an easy example, I presume that many more supporters of the ultimately ill-fated Equal Rights Amendment believed that it was desirable for one of these second group of reasons rather than for the first.54
It should now be clear that one simply cannot assert with any confidence that all of the textual additions were viewed as legally necessary even by their supporters. There is, therefore, no guarantee that even Madison would have identified the number of amendments, as of 1791, as ten, at least once one accepts the difference between “amendment” and “numbered textual addition.” The problem becomes far more complex when we address certain of the textual additions from our own, contemporary, perspectives as well-trained (or at least well-socialized) lawyers.
Take, for example, the Thirteenth Amendment, which abolished slavery. Surely those who believed, with Frederick Douglass, that the Constitution never allowed slavery in the first place could scarcely have believed that an amendment was necessary to abolish it.55 Still, Douglass undoubtedly represented only a minority position, and most partisans of the Thirteenth Amendment, including Abraham Lincoln, believed that it was legally necessary in order to abolish slavery, for example, in the slave states—Maryland, Delaware, Kentucky, and Missouri—that had remained loyal to the Union. But we in 1994 certainly need not believe, as a legal proposition, that without the Thirteenth Amendment slavery would have been protected against nationally imposed abolition.56 To hold such a view would require, for starters, rejection of the propriety of practically every important commerce clause decision since 1937. Can it conceivably be the case, for example, that a Congress authorized to tell the Darby Lumber Company that it must pay a minimum wage to its laborers is without the power to transform chattel slavery?57 If we accept the legitimacy of decisions such as Darby, NLRB v. Friedman-Harry Marks Clothing Co.58 (the fascinating companion case to the far more famous Jones & Laughlin decision),59 and Wickard v. Filburn,60 all upholding what had previously been viewed as unacceptable federal regulation of “local” concerns, then we simply cannot believe that the Thirteenth Amendment is the only barrier, at least theoretically, to the reinstitution of slavery in a state.61
I am even more confident that few contemporary lawyers believe that the Fifteenth and Nineteenth Amendments are “necessary,” given contemporary interpretations of the Fourteenth Amendment in regard to racial and gender classifications concerning such a fundamental interest as voting. And if the Supreme Court was correct in Harper v. Virginia Board of Elections,62 which held that Virginia’s poll tax for state elections violated the Constitution, then surely the Twenty-fourth Amendment, which two years before barred a poll tax in federal elections, was a wholly gratuitous addition to the text. Only if one agrees with Justice Harlan’s considerably less generous reading of the Fourteenth Amendment would it be the case that we would lose something legally significant were the Fifteenth, Nineteenth, and Twenty-fourth Amendments suddenly to disappear from the text of the Constitution.
Indeed, it is a fitting irony that some supporters of the Fourteenth Amendment argued that it was not at all necessary inasmuch as it simply spelled out what a correct interpretation of the Constitution already required.63 I quickly concede that an accurate historical portrayal of the background of all of the amendments that I have been discussing would take into account the perception of some of the best constitutional analysts of the day that they were indeed “necessary.” But this is only to highlight one of the central mysteries of our operative constitutional practice, which is the radical transformation through time of central legal doctrines, such as the power of Congress under the commerce clause, without formal amendment—the addition of text through the use of Article V mechanisms—ever being deemed necessary.
Returning to the initial conundrum, we can now see that someone who disagrees with James Boyd White’s designation of McCulloch as an amendment—and disagrees as well with the description of any other decisions as de facto amendments—might well have an interpretive theory sufficiently generous to view many of the explicit textual additions as unnecessary and spelling out what was already “in” the Constitution to be teased out through legitimate interpretation. Once this move is taken, then “(a) fewer than 26” is clearly the best answer, certainly far more sophisticated theoretically than either “(b)” or “(c).” But, after all, the central premise of my argument is that practically any other answer is more sophisticated, as a theoretical matter, than a hapless counting up of the numbered additions.
I have proffered a distinction—a structural opposition—between interpretation and amendment even as I cheerfully concede serious doubt that anyone can supply formal criteria by which to distinguish the two. Indeed, I strongly suspect that clever analysts can repeatedly show that what are thought to be “interpretations” are better viewed as “amendments” and, of course, just the opposite—that what were thought to be great constitutional innovations, such as women’s suffrage, were in fact not necessary at all because they were already immanent in the properly interpreted existing constitutional regime. Thus it may well be that the opposition I am insisting on is what my colleague Jack Balkin has termed a “nested opposition,”64 by which he refers to basic notions that structure our thought even as they are constantly subject to conceptual revision and “deconstructive” analysis. The philosophy from which such an approach is drawn is what has come to be called nonfoundational pragmatism. That is, regardless of our inability to provide an allegedly firm, and formalistic, conceptual grounding of our terms, we nonetheless find that we make our way through the world—or more accurately, through the forms of life that make up our worlds—by recurrence to basic notions that we simply seem unable to leave behind.
I believe that the distinction between interpretation and amendment is one of those notions. Our constitutional discourse would be far different if, for example, opponents of a particular decision by the Supreme Court could no longer denounce it as a usurping “amendment” rather than plausible “interpretation” or if senators could no longer confidently assert (and receive a nominee’s ready agreement) that a judge’s task is “to interpret” rather than “to amend” the materials by illicit “legislation.” Those who denounce decisions as unacceptable “amendments” obviously do not mean that the Court has suddenly placed a numbered textual addition in the canonical text that is placed in our casebooks or distributed to school children by the government. What they mean, of course, is that the Court’s decision does not follow from any authorized mode of interpretation and is merely a “pretext” for judicially imposed transformation.
Nor is it only the critic of courts or presidents who depends on maintaining the rhetorical force of “amendment” as a distinction from ordinary interpretation. One cannot make the slightest sense of Bruce Ackerman’s enterprise in constitutional transformation, summarized in his contribution to this volume, without accepting the reality, and almost overwhelming importance, of the distinction between “interpretation” and “amendment.” I do not know if Ackerman accepts White’s description of McCulloch as an amendment (signifying a “constitutional moment,” in Ackerman’s language). But he surely must believe this to be true in regard to such cases as West Coast Hotel v. Parrish65 and Darby Lumber Co., even if he would argue that these decisions must be placed within the context of a supple and complex process of amendment of which they were simply the final step recognizing the completion of that process.66
Ackerman rejects in toto the earlier New Deal historiography by which the decisions of 1937 were simply restorations of the initial (and presumptively legitimate) Marshallian vision as spelled out in McCulloch and Gibbons v. Ogden. Were they merely restorations, or even genuinely new developments nonetheless legitimized by their accordance with generally accepted principles of constitutional interpretation, then there would be no need for him to construct his marvelously complex accounts of Publian politics and constitutional moments that provide an alternative rendering of the American constitutional process. Ackerman therefore could not possibly agree with the comment by Stephen Holmes and Cass Sunstein, in their own contribution to this volume, that, in contrast to Ackerman’s view of “the New Deal as a structural amendment to the Constitution … [,] we think it is more accurate to see the New Deal as a product of reasonable interpretive practices.”67 Ackerman has committed himself to the view that, because the New Deal is better conceptualized as an amendment than as an interpretation, it becomes necessary to discern the heretofore hidden alternative to Article V that fully legitimates it. Not only have Americans been inventive in their use of Article V; more significant, their inventiveness has been manifested in the very process of invention itself. What we mean by constitutional governance has been transformed in the process of actually governing ourselves over the past two centuries. It is our ignorance about the methods and procedures that we have actually used to provide—and transform—our frameworks of constitutional governance that so disturbs Ackerman and drives his project. Our ignorance is not merely an academic affront; according to Ackerman, it leads to a fundamentally stunted view of political possibility and of our own capacities as potentially Publian citizens who can engage not only in constitutional “interpretation,” but also, more important, constitutional fabrication and innovation when thought necessary, even if done outside the specific forms provided by Article V.
But it is not only someone who accepts Ackerman’s distinctive reading of our constitutional history who must think more deeply about the patterns and practices of constitutional transformation and, therefore, take seriously the multiple choice question that structures this essay. The best example of this point is provided by Robert Bork’s critique of Ackerman’s thesis in The Tempting of America: The Political Seduction of the Law. Bork devotes two pages to attacking his former colleague’s theory of “structural [non-Article V] amendment.” Though he agrees with Ackerman that “the Constitution’s interpretation has undergone radical shifts in the past that cannot be accounted for by classical or lawyerly reasoning,” including, one presumes, “the constitutional revolution worked by the New Deal Court,” he refuses to “concede its legitimacy.”68 One might think, then, that Bork, were he on the Supreme Court, would refuse to recognize those putatively unconstitutional developments and, in order to return to the proper understanding of the Constitution, overrule them. This is, however, incorrect.
Repeating some of the argument he made before the Senate, Bork emphasizes in his book that the “it is too late to overrule … those decisions validating certain New Deal and Great Society programs pursuant to the congressional powers over commerce, taxation, and spending. To overturn these would be to overturn most of modern government and plunge us into chaos.”69 Similarly, although Bork denounced the Supreme Court’s decision in Bolling v. Sharpe,70 invalidating as a violation of the due process clause of the Fifth Amendment school segregation in the District of Columbia, as “lawless” and “a clear rewriting of the Constitution by the Supreme Court,”71 he had, when testifying before the Senate, assured his interrogators that he would not, even if given the chance, overrule it. Unless we reduce Bork’s argument to the rankest kind of prudentialism72 (or, in the case of his testimony to the Senate, opportunism), it must be the case that he accepts, whatever his strong desires to do otherwise, the fundaments of Ackerman’s theory. These are (1) that there indeed have been constitutional amendments besides those comprising the numbered textual additions and (2) that there is a set of political practices, perhaps including sheer reliance, that can legitimate these non-Article V amendments in the very specific sense that judges sworn to uphold the Constitution can (and should), without compunction, feel bound by them and refuse to overrule them. I would, therefore, be astonished if Bork gave “(b)” or “(c)” as his answer to the question posed by this chapter.
It is, I hope, now clear why anyone whose interest in normative constitutional law—i.e., identifying those constitutional norms that are obligatory for anyone who has promised “to obey” the Constitution of the United States—must view constitutional amendment as a major theoretical problem. But perhaps there are still some political scientists who would respond that the purported distinction between interpretation and amendment is of no interest to them, that they are interested only in the hard stuff of political behavior. Many (perhaps most) of us by now have been persuaded that this is an implausible account of how one in fact does political science, that one can scarcely ignore a culture’s own self-understanding if one wishes to understand its behavior. But one need not resolve this theoretical debate in order to believe that the distinction between amendment and interpretation is of import even to the most tough-minded political scientist faced, for example, with the task of introducing “American government” to students. Almost undoubtedly students will be assigned textbooks purporting to explain basic constitutional practices, including how amendments are added to the Constitution. To the extent that such discussions focus exclusively on Article V, they are simply wrong, and students are terribly misled if they rely on them. The necessary expansion of discussion beyond Article V demands, however, structured analysis that rapidly leads into just the kinds of distinctions suggested in this essay (and throughout this volume).
Earlier versions of this essay were published in Constitutional Commentary 8 (1991): 409, and in Michael Brint and William Weaver, eds., Pragmatism in Law and Society (Boulder, Colo.: Westview Press, 1991), pp. 295–310. I gratefully acknowledge helpful criticism from Akhil Reed Amar, Jack Balkin, Scot Powe, Fred Schauer, and Jeffrey Tulis.
1 William Rehnquist, “The Notion of a Living Constitution,” Texas Law Review 54 (1970): 693.
2 Missouri v. Holland, 252 U.S. 416, 433 (1920).
3 347 U.S. 483 (1954).
4 See Robert Bork, The Tempting of America: The Political Seduction of the Law (New York: Free Press, 1990), p. 143. Bork testified as follows to the Senate:
Passing that historical evidence, which I think casts some doubt on the flat assumption that the 14th amendment really meant separate but equal, let me say this. [The framers] wrote a clause that does not say anything about separation. They wrote a clause that says “equal protection of the laws.”
I think it may well be true … that they had an assumption which they did not enact, but they had an assumption that equality could be achieved with separation. Over the years it became clear that this assumption would not be borne out in reality ever. Separation would never produce equality. I think when the background assumption proved false, it was entirely proper for the court to say “we will carry out the rule they wrote” and if they would have been a little surprised that it worked out this way, that is too bad. That is the rule they wrote and they assumed something that is not true.
… You could suppose they had written a clause that said “we want equality and that can be achieved by separation and we want that too.”
By 1954 it was perfectly apparent that you could not have both equality and separation. Now the court has to violate one aspect or the other of that clause, as I have termed it hypothetically. It seems to me that the way the actual amendment was written, it was natural to choose the equality segment, and the court did so. I think it was proper constitutional law, and I think we are all better off for it.
U.S. Congress, Senate Committee on the Judiciary, Nomination of Robert H. Bork to be Associate Justice of the Supreme Court of the United States: Hearings before the Senate Judiciary Committee, pt. 1, 100th Cong., 1st sess., 1987, p. 286.
5 This is also at the heart of the common contrast that is drawn between acceptable judicial “interpretation” and forbidden judicial “legislation.” See, for example, the opening statement of Utah Senator Orrin G. Hatch in the hearing on Ruth Bader Ginsburg’s nomination to the U.S. Supreme Court, where he noted that “under our system, a Supreme Court justice should interpret the law, and not legislate his or her own policy preferences from the bench.” “Excerpts from Senate Hearings on the Ginsburg Nomination,” New York Times, July 21, 1993, C26 (national ed.).
6 New, in this context, should not be confused with transformative. The former is a question of interpretive theory; the latter, one of evaluating the significance of any given change.
7 Ullmann v. United States, 350 U.S. 422, 428 (1956). See Peter Suber, The Paradox of Self-Amendment (New York: Peter Lang Pub., 1990), p. 163.
8 See Philip Bobbitt, Constitutional Fate (New York: Oxford University Press, 1982), and Constitutional Interpretation (Cambridge, Mass.: Basil Blackwell, 1991), for elucidations of six “modalities” of constitutional interpretation, all of which are joined as “interpretations.”
9 William Harris, The Interpretable Constitution (Baltimore: Johns Hopkins University Press, 1993), p. 165.
10 Madison’s speech to the House of Representatives is reprinted in Paul Brest and Sanford Levinson, Processes of Constitutional Decisionmaking, 3d ed. (Boston: Little, Brown, 1992), pp. 11–13. The quoted passage is at page 13.
11 The veto message is reprinted in Richard B. Morris and Jeffrey B. Morris, eds., Great Presidential Decisions (New York: Richardson, Steirman & Black, 1988), p. 81.
12 John Tagliabue, “A Threat to Kohl,” New York Times, April 23, 1991, A1, A8 (late ed.).
13 Though see Peter Suber’s discussion of “amendment by interpretation” in The Paradox of Self-Amendment, pp. 197–206, and his comment that “since the New Deal era the fact of judicial amendment has become commonplace” (p. 415, n. 3). See also the essay by Donald Lutz in this volume, where he argues, altogether plausibly, that a constitutional structure that makes formal amendment too difficult will inevitably develop alternative routes toward achieving necessary transformations, including latitudinarian conceptions of permissible “interpretation.” As Suber notes, though, “the debate has shifted from [the] occurrence [of amendment by interpretation] to its desireability and legitimacy” (ibid.), which suggests, among other things, that there is still more than a little resistance to accepting this “commonplace” practice.
14 Brest and Levinson, Processes of Constitutional Decisionmaking, p. 11.
15 See Justice White’s denunciation of the majority opinion in Shaw v. Reno, 113 S.Ct. 2816, 2840 (1993).
16 See Anthony D’Amato, “Aspects of Deconstruction: The ‘Easy Case’ of the Under-Aged President,” Northwestern University Law Review 84 (1989): 250.
17 See Saul A. Kripke, Wittgenstein on Rules and Private Language (Cambridge: Harvard University Press, 1982), p. 78.
18 The notions both of an interpretive community and of “off-the-wall” argumentation are taken from Stanley Fish. See Is There a Text in This Class? The Authority of Interpretive Communities (Cambridge, Mass.: Harvard University Press, 1980), pp. 322, 357; Doing What Comes Naturally: Change, Rhetoric, and the Practice of Theory in Literary and Legal Studies (Durham, N.C.: Duke University Press, 1989), pp. 141ff.
19 Walter F. Murphy, “An Ordering of Constitutional Values,” Southern California Law Review 53 (1980): 703, 754–57. See Sotirios A. Barber, On What the Constitutional Means (Baltimore: Johns Hopkins University Press, 1984), p. 43: “In our everyday discourse we distinguish amendment from fundamental changes because the word amendment ordinarily signifies incremental improvements or corrections of a larger whole.” See also the essays in this volume by Walter Murphy and Mark Brandon.
20 See Daniel A. Farber and Suzanna Sherry, A History of the American Constitution (St. Paul, Minn.: West Publishing Co., 1990), p. 282, as well as the other speeches collected at pages 278–89 canvassing the issue.
21 Ibid., pp. 285–86. I assume, incidentally, that Boutwell was not being racist in his reference to “the King of Dahomey” and that he would have been just as upset had an amendment been proposed to invite Queen Victoria or the Emperor Franz Josef to rule.
22 See Gene Nichol, “Constitutional Judgment,” Michigan Law Review 91 (1993): 1107, 118 (review of Philip Bobbitt, Constitutional Interpretation). The Colorado Constitution permits “legislation and amendments to the constitution” to be adopted by the initiative process (Art. V, sec. 1), while constitutional conventions may be employed to seek “revisions, alterations [and] amendments” (Art. XIX, sec. 1).
23 52 Cal. 3d 336, 801 P.2d 1077, 276 Cal. Rptr. 326 (1990).
24 52 Cal. 3d at 342.
25 Although the principal focus of this chapter, and of most of the essays in this book, is the American legal system, it should be clear that “any given legal development” is intended to refer to any and all legal systems. Consider, for example, the insistence by Rabbi Barry Freundel that the rabbinic judge, like adjudicators in “all law-based-societies, harmonizes … and papers over historical differences. Texts are not deconstructed but are plumbed for old values applicable to new circumstances.” Indeed, argues Freundel, “Judaism’s principle of faith rests on the implicit claim, based on the Torah’s divine origins, that the revealed word contains within it so much depth, such profound eternal values, that every new situation at every point in history can be dealt with … appropriately … on the basis of the existing text and the values contained therein.” Barry Freundel, “Midrash & Deconstruction” (letter to the editor), Commentary, August 1993, pp. 12–13 (emphasis added, ellipses in original). See the essay by Noam Zohar in this volume for a somewhat different analysis of change within the Jewish legal tradition.
26 Harris, The Interpretable Constitution, pp. 174–201.
27 17 U.S. (4 Wheat.) 316 (1819).
28 17 U.S. at 415.
29 Ibid., p. 421.
30 Letter of September 2, 1819, in Max Farrand, ed., Records of the Federal Convention of 1787 (New Haven: Yale University Press, 1911), 3:435.
31 James Boyd White, When Words Lose Their Meaning (Chicago: University of Chicago Press, 1984). p. 263 (emphasis added). White is certainly not the first person to view Marshall as something other than the mere applier, through interpretation, of constitutional commands. Thus Peter Suber quotes from an 1890 report of the New York State Bar Association: “It is almost incorrect to say that throughout this period [1804–65] the Constitution was unamended, for it was so expanded by the decisions of Marshall that they amounted to virtual amendments to its text.” Suber, The Paradox of Self-Amendment, p. 199.
32 Marshall could have, for example, stated that the necessary and proper clause required a determination by Congress that the bank was extremely important (and not merely convenient) and that Congress had done so, or he might have engaged in an independent determination of the “compelling interest” (to use a thoroughly anachronistic term) behind the bank and found that there was indeed such an interest. The fundamental doctrinal importance of McCulloch, of course, is that he did neither. The case is a not-very-removed ancestor of the contemporary “minimum rationality” approach to judicial review of legislative action, which, as many have noted, is minimal indeed and operates primarily to enhance governmental power.
33 5 U.S. (1 Cranch) 137, 178 (1803).
34 Even Robert Bork is hesitant to condemn Marshall, whom Bork describes as “an activist judge” even as he goes on to assert that “his activism consisted mainly in distorting statutes in order to create occasions for constitutional rulings that preserved the structure of the United States. Although he may have deliberately misread the statutes, he did not misread the Constitution. His constitutional rulings, often argued brilliantly, are faithful to the document.” Bork, The Tempting of America, p. 21. Bork would presumably vigorously disagree with White’s analysis of McCulloch, not to mention Madison’s criticisms as expressed in Spencer Roane. It is obvious, of course, that this raises significant problems for anyone who is, like Bork, committed to so-called “original intent” as the authoritative guide to constitutional meaning. One can hardly resist asking why Marshall is a more authoritative guide to constitutional meaning than is James Madison, sometimes given the appellation of “father of the Constitution.”
35 See Letter to Spencer Roane (September 6, 1819), in Merrill D. Peterson, The Portable Thomas Jefferson (New York: Viking Press, 1975), p. 562.
36 Letter to Thomas Ritchie (December 25, 1820), in Dumas Malone, Jefferson and His Time (Boston: Little, Brown, 1981), 6:356.
37 290 U.S. 398 (1934).
38 Ibid., pp. 415, 426.
39 As noted in the introduction, the so-called Twenty-seventh Amendment is a professorial godsend for the questions it raises about the operation of Article V as a vehicle for amendment. As I explain there, this volume is not centrally concerned with what might be termed the “internal” questions posed by the Article V process, including the length of time that a proposed amendment remains on the table for state ratification, the issue presented by the purported Twenty-seventh Amendment.
40 Even this way of putting it is not without its ambiguities, given the multiple topics of several of the amendments. That is, there is no particular rationale for the inclusion in the Fifth Amendment of both the right to a grand jury before indictment together with the right to compensation for a taking of private property. As Akhil Reed Amar has suggested, there may be a good political reason: the “bundling” of the compensation clause, which apparently only James Madison thought particularly important, with other provisions much more popular by definition meant that the chances of passing the former were raised significantly as compared with its prospects if considered entirely alone. See Amar, “The Bill of Rights as a Constitution,” Yale Law Journal 100 (1991): 1131, 1181. The takings clause might therefore, at least as a theoretical proposition, have been given its own separate number. Similarly, it would not have violated any sense of organic integrity to join what we call the Fourth and Sixth Amendments, together with the grand jury and self-incrimination sections of the Fifth, into a single amendment dealing with criminal procedure. Nor would it have been jarring if the Fourteenth Amendment had been broken down into several separately numbered amendments.
41 This is obviously the crux of Bruce Ackerman’s extraordinary work, though, as shall be indicated below, I believe that he has failed to confront the importance of the interpretation-amendment distinction for his own enterprise.
42 The Federalist, No. 84 (Hamilton), in Jacob E. Cooke, ed., The Federalist Papers (Middletown, Conn.: Wesleyan University Press, 1961), p. 575.
43 James Wilson, “An Address to a Meeting of the Citizens of Philadelphia” (1787), quoted in Lucas A. Powe, The Fourth Estate and the Constitution (Berkeley: University of California Press, 1991), p. 44.
44 Speech of July 29, 1788, before the North Carolina ratifying convention, quoted in Farber and Sherry, A History of the American Constitution, p. 224 (emphasis added).
45 Indeed, the Ninth Amendment was added specifically to forestall such an interpretation. See Suzanna Sherry, “The Founders’ Unwritten Constitution,” University of Chicago Law Review 54 (1987): 1127, 1162–64. Even with the recent “rediscovery” of the Ninth Amendment, though, I think it is fair to say that Iredell’s worries have been vindicated, as demonstrated by the burden of proof, if not opprobrium, placed upon those who argue on behalf of “unenumerated rights” as part of the constitutional understanding.
46 One problem with their analysis, of course, was the existence of Article I, section 9, which specifically prevents the Congress from, among other things, passing bills of attainder or creating titles of nobility. Indeed, Hamilton specifically emphasizes the importance of section 9 as providing basic protection; he does not, however, address the point that if section 9 is in fact “necessary” in order to prevent such legislation, then the Wilson-Hamilton argument fails. Many opponents of the Constitution were quick to draw such an inference from the existence of section 9.
47 Fred Schauer has suggested that the real importance of the First Amendment may be the product of its incorporation into the Fourteenth Amendment as a limitation on the states. If one predicate of eighteenth-century constitutional theory was the limitation of the national government only to its assigned powers, another was the basically plenary powers of the states, which indeed made it crucial to establish bills of rights in state constitutions against the power of the otherwise unconstrained state. Without the textual presence of the First Amendment, it might have been considerably harder to impose its norms on states. Perhaps, but surely one could have reached many of the same results through interpretation either of the “privileges or immunities” clause of the Fourteenth Amendment or of the “republican form of government” clause in Article IV. It is undeniable that the existence of the textual First Amendment provided a powerful rhetorical resource (once members of the Court in the mid-twentieth century became interested in protecting unpopular speech), but this is quite different from arguing that its presence was “necessary” to attaining the ends sought.
48 See Paul Finkelman, “James Madison and the Bill of Rights: A Reluctant Paternity,” Supreme Court Review (1990): 301, 328–47, which offers just such a “political” interpretation of Madison’s support for the Bill of Rights and thus rejects the oft-argued view that Jefferson had persuaded his fellow Virginian that such amendments were even necessarily desirable, let alone “necessary,” on the merits.
49 See Amar, “The Bill of Rights as a Constitution,” pp. 1208–9. The quoted phrase comes from an October 17, 1788, letter of Madison to Thomas Jefferson.
50 Ibid., p. 1208, n. 344, quoting The Federalist, No. 84.
51 Ibid., p. 1154, n. 10, quoting Madison’s speech to the House of Representives on June 8, 1789.
52 National League of Cities v. Usery, 426 U.S. 833, 842 (1976) (emphasis added).
53 Ibid., quoting Documentary History of the Constitution (Department of State, 1894), 2:321.
54 Consider in this context the reasons given by Justice Ginsburg, during her confirmation hearings before the Senate Judiciary Committee, for endorsing the Equal Rights Amendment:
I remain an advocate of the equal rights amendment, I will tell you, for this reason: because I have a daughter and a grand-daughter, and I would like the legislature of this country and of all the states to stand up and say, “we know what that history [of denying rights to women] was in the 19th century, and we want to make a clarion call that women and men are equal before the law, just as every modern human rights document does since 1970.” I’d like to see that statement made just that way in the United States constitution.
“Excerpts from Senate Hearing on the Ginsburg Nomination,” New York Times, July 22, 1993, A10 (national ed.).
Note well that, in advocating a “clarion call,” Justice Ginsburg did not say that the ERA would in fact have granted women any legal rights that they do not now enjoy under a properly interpreted Fourteenth Amendment. She did not suggest that she would be forced, as a member of the Supreme Court, to decide cases differently because the present Constitution is different in meaning from one including the ERA.
55 For Douglass’s argument (which was not original with him), see “The Constitution of the United States: Is It Pro-Slavery or Anti-Slavery?” in Philip Foner, ed., The Life and Writings of Frederick Douglass (New York: International Publishers, 1950), 2:467–80, discussed in Sanford Levinson, Constitutional Faith (Princeton: Princeton University Press, 1988), pp. 31, 76–77.
56 No one denied that a state could voluntarily choose to abolish slavery within its jurisdiction.
57 See United States v. Darby, 312 U.S. 100 (1941).
58 301 U.S. 58 (1937).
59 National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937)
60 317 U.S. 111 (1942).
61 Both Fred Schauer and Akhil Reed Amar have pointed out that I am overlooking one important legal consequence of the Thirteenth Amendment, even given the modern recognition of Congress’s extensive regulatory power under the commerce clause: The Thirteenth Amendment entrenches the abolition of slavery, thus removing from Congress the power it also has under the commerce clause to acquiesce to the use of slave labor in the states. Ordinary legislation, by definition, can be overridden by a subsequent legislature. Thus the Thirteenth Amendment is not a genuine parallel to the Equal Rights Amendment unless one adopts Douglass’s view that the unamended Constitution, correctly read, was as hostile to slavery as the unamended Constitution, correctly read, is supportive of gender equality.
62 383 U.S. 663 (1966).
63 See Howard Jay Graham, “Our ‘Declaratory’ Fourteenth Amendment,” Stanford Law Review 7 (1954): 3. Graham begins his article by noting that a “ ‘declaratory constitutional amendment’ is today almost as baffling and incongruous a concept as an ‘unconstitutional constitution.’” For contemporary readers, “to amend [the Constitution] is to revise it and change it, not to discover or ‘declare’ an antecedent meaning, much less to define or redefine some pre-existent natural right or rights.” He immediately goes on to argue, however, that “it often was squarely otherwise with our ancestors” and that we must recapture the understanding, however alien to current sensibility, if we are to understand the theory underlying the Fourteenth Amendment on the part of at least some of its most important supporters. For a more recent statement of the “declaratory” thesis, see Michael Kent Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (Durham, N.C.: Duke University Press, 1986), pp. 90–91.
64 J. M. Balkin, “Nested Oppositions,” Yale Law Journal 99 (1990): 1669.
65 300 U.S. 379 (1937).
66 I should note, however, that I think a glaring absence in Ackerman’s work up to this point is a full-scale explication of his theory of interpretation by which he recognizes certain views of the Constitution as not in fact immanent within the preexisting materials and therefore in need of the special mode of justification that he gives through his theory of “structural amendment.”
67 Stephen Holmes and Cass R. Sunstein, “The Politics of Constitutional Revision,” chap. 12 of this volume.
68 Bork, The Tempting of America, p. 215.
69 Ibid., p. 158.
70 347 U.S. 497 (1954).
71 Bork, The Tempting of America, pp. 83–84.
72 See Bobbitt, Constitutional Interpretation, chap. 4 (“The Nomination of Robert Bork”), for a very interesting argument that Bork is indeed best viewed as a prudentialist, in contrast to his own self-presentation as a principled originalist.