Cast a cold eye
On life, on death.
(W. B. Yeats)
PAST anniversaries of the signing and ratification of the U.S. Constitution were marked by awed self-congratulation and public indifference, and the bicentennial was no exception.1 The Constitution—presented as a document establishing a framework for government in the late eighteenth century, which survives today essentially unchanged—was once again proclaimed an unqualified success.2 The rhetoric of the bicentennial confirmed the judgment of Sanford Levinson and others that an essential element of the American civil religion is reverence and veneration of the Constitution.3
While I think the bicentennial assertions of the Constitution’s success are extremely questionable, I do not propose to argue with them. Claims that the U.S. Constitution is a magnificent document that “embodies the American spirit, the American Dream,”4 are not really open to rational debate. They are expressions of quasi-religious faith and patriotic sentiment and are not advanced on the basis of argument. It is questionable whether such assertions even have the Constitution as their subject—they seem to use the Constitution as a symbol for the nation as a whole. As revered as the Constitution may be, it is primarily a political institution and deserves to be evaluated as we evaluate other fallible human projects.
More sober judgments are available concerning the Constitution’s success. The 1980s saw the formation of the Committee on the Constitutional System, a group composed of members of Congress and former government officials who are concerned that constitutional deficiencies have at least partially contributed to the policy difficulties of the past two decades.5 On the other hand, distinguished groups of lawyers, judges, and academics gathered by the American Academy of Political and Social Science in 1976 and the American Assembly in 1987 concluded that, despite the vast changes of the twentieth century and the numerous problems of governance facing the United States, no changes in the Constitution were necessary or wise.6 Unfortunately, the debate over the Constitution’s adequacy is often so abstract that it is hard to tell whether the two sides are discussing the same issue. Proponents of success often cite the document’s longevity and the absence of significant amendments,7 while critics argue that any success is due to the adjustments made by the generations that followed the Framers.8 So far neither side has developed clear criteria that could be used to improve our understanding of the question at issue.
Evaluations of the Constitution’s performance seem to turn on views about how constitutional change has occurred. If change primarily occurs through the formal amendment process set out in Article V, then the case for the Constitution’s success is strengthened because not many significant amendments have been made. But if most significant constitutional change occurs through non-Article V means, then any claim of the Constitution’s success becomes far more problematic. In this chapter, I propose a theory of how constitutional change has occurred in the United States and attempt to debunk claims of the Constitution’s success. I contend that change has occurred primarily through non-Article V means and that the original purpose of constitutionalism has been undermined as the political branches have assumed a greater role in determining the meaning of the Constitution. My perspective assumes both that no human institution is fault-free, least of all political institutions, and that all political institutions are affected by the general tides of social, political, and economic history and are unlikely to survive without significant change for more than a generation. Moreover, I view the text of the Constitution and its settled interpretations as part of a larger constitutional-political system that influences the meaning of the text; the Constitution thus is a “text-based institutional practice.”9
Part I of this chapter provides some necessary background on the concept of constitutionalism and introduces the key problems and tensions inherent in the U.S. constitutional-political system. Parts II and III develop the theory of constitutional change by reviewing the most significant constitutional developments of the nineteenth and twentieth centuries. Part IV considers the implications of this historical experience for the Constitution’s third century.
A number of different definitions have been given for the concept of constitutionalism, but one essential element of any definition is the idea of constitutionalism as government limited by the rule of law. “In all its successive phases, constitutionalism has one essential quality: it is a legal limitation on government; it is the antithesis of arbitrary rule; its opposite is despotic government, the government of will instead of law.”10
Controlling the power of the sovereign or the state was one of the most important ambitions of eighteenth-century constitutionalists. The American colonists criticized the rule of King and Parliament as arbitrary, and their experience with colonial charters and revolutionary state constitutions suggested that the national government could be controlled through a constitution that had the status of law.11 A distinctive American method of constitution making evolved rapidly under the pressures of war and an unsettled peace. Constitutions were to be written by a special assembly of citizens and then submitted to the people for approval.12 They generally contained a plan for the framework of the government and a list of fundamental rights guaranteed to the people. Further, constitutions were expected to be literally perpetual—legal checks that would last forever as protections against tyranny.13 The Constitution of 1787 became famous for its brevity and its use of general rules and normative standards to guide the government through the centuries.
It is helpful to specify how the various kinds of provisions constitutions typically contain affect policy. Policy-structuring or constitutive14 provisions are usually phrased in general terms and have the potential to influence a wide variety of policy outcomes.15 Policy-determining or regulative provisions are generally indistinguishable in form from the rules contained in ordinary legislation and affect only a limited set of policy outcomes.16 On these terms, the distinctive point of constitutionalism is to use constitutive provisions that have the force of law to influence how the government acts with regard to a wide range of specific policies.
Once we define constitutionalism as the attempt to control the state through the use of constitutive rules having the force of law and contrast this with the idea of controlling individual behavior through, say, the regulative rules of the criminal law, it becomes apparent that it is not at all certain whether constitutionalism can work in the manner intended. While eighteenth-century lawyers presumably had a good grasp of how the criminal law could control individual behavior, no similar body of experience existed for controlling a national government through an unchanging fundamental “law.” Americans were attempting to do something that had never been done before, and the success of their experiment was by no means assured.
The main problem is that it is not clear that constitutive rules can function to control behavior in the same manner as ordinary legal rules. To control the state over many generations, they must be phrased in a general way and so take the form of broad normative principles. They concern the most fundamental political issues and can influence any specific policy decision. General principles require interpretation before they can be applied, and legal interpretation inescapably involves making normative judgments about the purpose and point of the text.17 It is likely that our judgments about what the constitutive rules of the constitution mean will not be independent of our judgments of the wisdom of specific policies because both sets of judgments will be influenced by the same values. Disagreements over the correct interpretation of the constitution will track party-political disagreements generally. It appears that a constitution’s constitutive rules cannot function in a strong sense as an independent check on government because there is no basis to assess government action independent of reigning political values.
Constitutive rules thus exist in the uncertain boundary territory between law and politics. The experience of the new nation under the Constitution confirmed that important political disagreements would be expressed in constitutional terms as the founding generation began arguing about the meaning of the document almost immediately after it was ratified.18 Noah Webster objected to the whole idea of constitutionalism on this basis, arguing that government “takes its form and structure from the genius and habits of the people; and if on paper a form is not accommodated to those habits, it will assume a new form, in spite of all the formal sanctions of the supreme authority of a State.”19 This phenomenon was the subject of Tocqueville’s famous comment that “there is hardly a political question in the United States which does not sooner or later turn into a judicial one.”20 It is not often noted that this observation has two implications: American constitutionalism not only tended to judicialize politics; it also politicized the law. The consequence is a system of constitutional law that tangles political and legal considerations that are kept separate in other Western nations.21
Understanding constitutionalism as an instance of the interpenetration of law and politics helps to frame my inquiry into how constitutional change has occurred. As much as constitutionalism inevitably intertwines law and politics, much of American constitutional history can be seen as a struggle to keep them separate and to preserve the unique status of the Constitution as supreme law. American constitutionalists faced two specific challenges: (1) how to keep constitutional law relatively separate from ordinary political struggles over time, especially as the original Federalist consensus on the nature of the constitutional-political order disintegrated in the nineteenth century; and (2) how to ensure that appropriate constitutional change occurred as the government was required to assume fundamentally new powers and responsibilities.
It will be helpful to briefly explore one answer to these challenges, that of “rule-of-law constitutionalism.” The objective of rule-of-law constitutionalism is to preserve a clear separation between constitutional law and everyday politics by making sure that everyone has the same understanding of what the Constitution means. If everyone shares the same interpretation of the Constitution, the fractious nature of everyday politics will not be reproduced in constitutional debate. To achieve this unanimity in constitutional interpretation, rule-of-law constitutionalism applies the standards governing change in ordinary legislation to the constitutional sphere. Thus rule-of-law constitutionalism insists that every important change in constitutional practice be explicitly marked by an amendment, just as every important change in statutory law is ostensibly marked by new legislation. Resort to amendment ensures that significant changes in constitutional practice are clearly recognized and openly debated. Thomas Jefferson held this view in the debate over the constitutionality of the Louisiana Purchase in 1803.22
The attractiveness of rule-of-law constitutionalism lies in its use of the familiar standards governing statutory change. When a significant departure from the status quo is required, the rules of law must be formally changed. But it is not a feasible method of constitutional change and the reasons why it is not illustrate the differences between ordinary legislation and the unique mixture of law and politics that characterizes constitutionalism. Since amending the Constitution is far more difficult than passing ordinary legislation, there is a recurring argument over when an amendment is necessary. Those who oppose any important policy change argue that it requires an amendment. Even if they are only a small minority, their demand must be satisfied. If it is not, the minority claims that the Constitution is being improperly amended through a controversial interpretation that has no legitimacy. This destroys rule-of-law constitutionalism because the point of the doctrine is to guarantee that everyone has the same understanding of what the Constitution means. If many such minorities are satisfied, however, then the Constitution would quickly become loaded down with specific regulative rules. The Constitution would increasingly resemble ordinary legislation and would simply reproduce the conflicts of day-to-day politics rather than structure them. Since this would undermine the distinction between constitutional law and ordinary politics, it appears that rule-of-law constitutionalism is self-defeating.
James Madison posed another strong objection to rule-of-law constitutionalism in The Federalist, No. 49 by arguing that frequent recourse to the amending process would undermine the stability of the government because it would imply that the Constitution was seriously defective.23 Madison noted that the Constitution would benefit from “that veneration which time bestows on everything,”24 and that this veneration would enhance the stability of government generally. Frequent amendment would have the effect of constantly putting the fundamental structure of the government up for grabs as ordinary political struggles were transformed into constitutional crises.
The objections to rule-of-law constitutionalism suggest that the unique status of the Constitution as a policy-structuring document cannot be maintained through the procedures appropriate to statutory change. Either important constitutional changes will have to occur through non-Article V means, or the nature of the document as primarily constitutive will be altered. Both alternatives would be explored in the two centuries that followed ratification of the Constitution.
Formulating standards to judge how well the Constitution has worked is not an easy task, and it is especially difficult for American lawyers. Lawyers tend to regard the Constitution as the set of ultimate normative standards appropriate for judging any political practice. The Constitution occupies so much normative space that it is hard to see anything else. The Constitution is “a machine that [goes] of itself,”25 and policy disasters and even constitutional crises are not evidence of a failure of the document, but only that Americans have failed its high expectations.
What generally prevents a realistic assessment of the Constitution is the habit of treating it simply as a document under glass rather than as a text-based system of institutions. Political institutions can succeed or fail, work well or badly, change incrementally or through radical reform. We must judge the collectivity of institutions known as the Constitution by the same standards we apply to political institutions generally. Thus the Constitution can be criticized when it can be causally linked with events that have harmful effects. Here a problem can arise if we disagree over what political theory should be used to specify what constitutes a harmful effect. Different political theories can obviously lead to different assessments of the Constitution’s performance. This difficulty will be avoided here by employing standards for criticism that seemingly enjoy wide agreement. At a minimum, it can be agreed that the Constitution should fulfill its purposes as stated in the Preamble, should ensure a stable and well-ordered polity, and should not lead to political outcomes that are in no one’s interest (such as frequent coups d’état or other breakdowns in public order). From this perspective, amendments, radical shifts in interpretation, and constitutional crises are prima facie evidence that the Constitution is not working well.
A national government was successfully established under the Constitution in 1789 and quickly proved superior to the government under the Articles of Confederation. But the nature of the federal union proved ambiguous. Was the United States a perpetual union of states subordinate to national authority, or was it a league of states, any one of which could secede at will?26 Partly because of this ambiguity, well into the nineteenth century, “the most common perception of the Union was as an experiment whose future was uncertain at best.”27 Citizens owed their primary allegiance to the separate state governments, and state and local governments did most of the actual business of governing throughout the nineteenth century.28
This last fact is crucial to an assessment of the constitutional order of the nineteenth century. Political institutions cannot be judged as working well or badly when they are not given any substantial tasks to perform. Yet apart from the Civil War and Reconstruction, this accurately describes the moribund condition of the national government throughout the nineteenth century.29 The main administrative task of the national government seems to have been simply to deliver the mail.30 Before the Civil War, it was far from clear whether the national government even had the ability to enforce national laws and federal court judgments.31 Although the Civil War briefly expanded the power and potential authority of the national state, it did not fundamentally alter the duties and structure of the government, which remained essentially unchanged until after the turn of the century.32 By contrast, “states built and subsidized a transportation infrastructure, set money and banking policies, established a legal structure for business growth, defined and punished crime, alleviated poverty, and determined the extent of people’s moral and religious freedom.”33
In this context, any assessment of the Constitution as working well or badly is relatively meaningless. The complex system of government created by the Framers was not given a true test for most of the first 140 years of the nation’s history because the federal government was not required to do very much. On the other hand, since state governments did most of the actual governing, their statutes and constitutions took the full impact of the various social and economic changes in the new nation. The discussion of constitutionalism in Part I argues that constitutions generally adjust to historical change either through non-Article V means or by losing their primarily constitutive character. American state constitutions are well known for displaying the latter effect. Starting in the 1820s, many new constitutions were written in response to social and economic change that resembled statutory codes and contained far more regulative rules than their eighteenth-century counterparts.34 Adapting to historical change forced state constitutions to become more like ordinary legislation and thus undermined, at least on the state level, the reasons for having a constitution in the first place.35
The national Constitution faced its first real test when the acquisition of territory during the Mexican War and the Wilmot Proviso of 1846 forced the issue of slavery onto the national agenda in a way that could not be ignored. The continuing controversy over slavery showed the American constitutional order to be unstable in a fundamental way. The Constitution itself can be viewed as a compromise on this issue and the slavery question caused a recurrent series of crises and compromises—the Missouri Compromise of 1820, the nullification crisis of 1833, the admission of Texas into the Union, the Compromise of 1850—that eventually resulted in a civil war between the states.36 From the introduction of the Wilmot Proviso to the end of Reconstruction three decades later, the nation was almost continuously in a political uproar as one constitutional crisis succeeded the next.37
The crises and the increasingly desperate attempts at compromise of the 1850s revealed that the “United States” was essentially a league of states without a central authority powerful enough to resolve a question that could not be settled by compromise. All the branches of the national government were eventually brought into play, as Congress repeatedly tried to get the federal courts to settle the matter, with the resulting disaster of the Dred Scott case.38 This attempt to resolve the crisis “was an implicit admission that political processes had broken down, and that the dominant political question of the period had proved beyond the capacity of the political system to resolve.”39 The confluence of constitutional ambiguity and political tensions meant that doctrines such as interposition, nullification, and secession, which were inimical to the national constitutional order, could not be effectively discredited.40 By the session of Congress that began in December 1859, the House of Representatives barely functioned as a deliberative body, as many members and spectators came armed, with the expectation that the war would start in the Capitol itself.41 When southern states seceded a year later, it seemed clear to many that the constitutional experiment had failed.42 “The ‘new light’ the War was shedding onto the ‘principles and meaning’ of the Constitution revealed that before 1861 American government had been untested. Now, ‘when it is for the first time subjected to the test of a severe ordeal, its defects are becoming manifest.’”43
The “constitutional catastrophe” of the Civil War,44 which cost over 620,000 lives, decimated the South’s economy,45 and affected national development well into the twentieth century, was one of the greatest political failures in world history that can be linked to a constitution, possibly only exceeded by the failure of the Weimar Constitution of 1919 in 1933.46 The war became a revolutionary struggle to end slavery and destroy the Old South, establish a national guarantee of civil rights, and terminate the agrarian republic of the Framers.47 As James McPherson has written, secessionists “were correct” in protesting that “they were acting to preserve traditional rights and values” and “to protect their constitutional liberties against the perceived northern threat to overthrow them.” It was the North’s, rather than the South’s, conception of republicanism that had changed since the period of the Founding. “With complete sincerity the South fought to preserve its version of the republic of the founding fathers—a government of limited powers that protected the rights of property and whose constituency comprised an independent gentry and yeomanry of the white race undisturbed by large cities, heartless factories, restless free workers, and class conflict.” For white southerners, the coming to power of a new Republican party, ideologically committed to “competitive, egalitarian, free-labor capitalism, was a signal to the South that the northern majority had turned irrevocably towards this frightening, revolutionary future.” Thus, says McPherson, “secession was a preemptive counterrevolution to prevent the Black Republican revolution from engulfing the South.” James B. D. DeBow and Jefferson Davis were thus correct in insisting, “We are not revolutionists. We are resisting revolution…. We are conservative.”48
The crises of secession and civil war were only the beginning of the constitutional disasters of the mid-nineteenth century. Because the Constitution did not provide for emergency government or clearly identify the duties of Congress and the president in the event of sudden invasion or rebellion, President Lincoln was forced to institute a “quasi dictatorship” in order to prosecute the war effectively.49 The three amendments to the Constitution that were the fruits of war would not have been ratified under normal conditions and were forced on the southern states as a condition of readmission.50 Under the Military Reconstruction Act of 1867, the South was occupied by thousands of federal troops commanded by officers who had the power to dismiss local officials and state governors.51 President Andrew Johnson attempted to subvert congressional Reconstruction by refusing to enforce the law, and became the only president to be impeached and nearly convicted for his failure to carry out his constitutional duties.52 In the South, a reign of terror was instituted by whites as the war continued after 1865 in guerrilla fashion. Federal laws were openly violated and “whole sections of Southern states experienced breakdowns in law and order.”53 “More so than at any other time in the history of the United States, terrorism and murder became a frequent adjunct of the political process.”54 Federal authorities were unable to stem this wave of counterrevolutionary terror and, by 1875, the forces of resistance were strong enough so that Democratic whites could openly crush the Mississippi Republican party without fear of retribution.55 Reconstruction culminated in the presidential election crisis of 1876, which the Constitution exacerbated by failing to provide any mechanism for judging disputed returns and allowing for no delay in inauguration.56 This is not an enviable constitutional record.
At a minimum, the crisis of the Union constituted a serious indictment of the constitutional order created by the Framers. The nation was not unified by fundamental law, but by military force. The national state created by the Constitution of 1787 was simply too weak to resolve important issues that divided the nation or even to maintain order when the need arose. Although the Civil War Amendments increased the potential authority of the national government somewhat, the question of how an active national state could be reconciled with an eighteenth-century constitutional order was avoided as most of the agencies created by the war disappeared after 1865.57
To an astonishing degree, however, the reputation of the Constitution did not suffer. Patriotic feeling fused the Constitution and the nation, so that when Lincoln responded effectively to the outbreak of war, the Constitution was once again judged to be adequate.58 This response and the reverence for the Constitution that grew after the war were not based on any realistic assessment of political institutions, but rather reflected the general glorification of the nation characteristic of the late nineteenth century.59 The Constitution did not undergo any important tests after the end of Reconstruction in the nineteenth century, as the national government was again not required to do very much.60 Fundamental change in the Constitution began to occur only after the electoral realignment of the 1890s and the events that followed—the slow demise of the early American state and the construction of a new national bureaucratic order.61
One reason the Constitution is typically accounted a success is that the text has changed very little since the Bill of Rights was ratified in 1791.62 Although more than ten thousand amendments have been proposed, only seventeen were adopted, and a good argument can be made that most of these amendments did not alter the fundamental structure of the three branches of government created by the framers. Only the Seventeenth Amendment, providing for the direct election of senators, changed a key element of the framers’ design.63 We must assess this claim, however, in the light of the need of change and the methods of constitutional change available.
As we have seen, the most important reason the Constitution did not experience significant change in the nineteenth century was that little was expected of the national government. The Civil War Amendments were approved under special circumstances and their potential for expansion of national authority was quickly nullified by the profound localism and antigovernment attitudes typical of nineteenth-century politics.64 The weight of the enormous social and economic changes of the late nineteenth century was borne by state governments, and state constitutions continued to change at a rapid pace. As the people attempted to restrict the powers of state legislatures, state constitutions became even more codelike.65 If constitutionalism rests on the idea that there must be a clear difference between ordinary legislation and the provisions of the constitution, then the experience with state constitutions in the nineteenth century indicated that constitutionalism could not survive historical change.
In light of the dramatic changes in state constitutions as state governments assumed new powers and roles in response to events in the nineteenth century, the key question of the twentieth century would be how the constitutional-political system would change as the national government assumed many duties that the states had previously shouldered alone and as it assumed completely new responsibilities, such as fighting world wars and maintaining a global military and intelligence establishment. The experience of state governments in the nineteenth century indicates that a change in the kind and level of government activity inevitably leads to constitutional change. The increase in government activity at the state level meant that state constitutions lost their constitutive character—how would the federal Constitution change in response to similar pressures?
The short answer to this question is that the federal Constitution underwent massive changes in the twentieth century, but that this happened, in the main, through non–Article V means. The twentieth century opened with a series of constitutional amendments largely sponsored by the Progressive movement (Amendments Sixteen to Nineteen),66 but only two (the income tax and the direct election of senators) arguably had significant policy-structuring effects. More important, there were no amendments to the Constitution with significant constitutive effects after Franklin Roosevelt took office in 1933. That is, during the period when the national constitutional order experienced the greatest changes in its history, the text of the Constitution changed hardly at all. The crucial constitutional fact of the twentieth century is that all significant change in the structure of the national government after the New Deal occurred through non–Article V means.67
Why should this be the case? This is best answered by examining the conflict between the New Deal and the Supreme Court. One need not believe in rule-of-law constitutionalism to think that the changes in the role of the national government in the regulation of the economy proposed by President Roosevelt were so fundamental that they should have been authorized through appropriate amendments. The New Deal reforms were likely the most significant changes in the constitutional system made in the twentieth century, yet one cannot tell from the text of the Constitution that any change occurred at all. Roosevelt’s reasons for not asking for amendments are instructive, because they apply with equal force to all of the significant constitutional changes that came after the New Deal and show why these changes could not have occurred through amendment.
Roosevelt carefully considered the amendment option from the summer of 1935 to the end of 1936.68 He eventually rejected this option for three reasons. First, after two years of study there was still no agreement in the executive branch on the language of any amendment.69 We can infer why this was the case. No one could anticipate what law the Court would strike down next, or what general rationales it would use. Also, no one could anticipate what kind of expansion in governmental power might be required by future events. Any amendment would therefore have to be drafted in broad terms, but a broad amendment increased the risk of unforeseen effects.70 The New Dealers could not afford to be as confident as the framers in drafting new constitutional provisions because they were trying to influence a complex governmental system that was already operating.
Second, any new amendment would still be subject to judicial interpretation.71 An amendment drafted in broad terms might be undermined by the Court through a narrow construction of its vague provisions. If, on the other hand, the amendment was drafted narrowly to send an unmistakable message to the Court, then it might not apply to all the circumstances in which the government needed new powers.
Third, the amending process specified in the Constitution was too cumbersome. It would take much too long and would not have a clear chance of success, since a minority of state legislative houses could defeat any amendment.72 “It would require an adverse vote by only one house in thirteen legislatures to defeat an amendment, and the state legislatures were known to overrepresent conservative interests.”73 Any amendment therefore required an extraordinary degree of national consensus. While Roosevelt may have had that degree of consensus behind him as a national leader, he could not be certain that the consensus would persist on any particular reform issue, especially when it involved an important change to the Constitution.
A fourth reason can be inferred from Roosevelt’s strategy in the 1936 presidential election. The election was Roosevelt’s best chance to win popular support for needed amendments, but he kept the Democratic platform ambiguous on this critical issue.74 Proposing amendments would constitute not only a criticism of the Court, but would suggest that the Constitution was not adequate to meet the crisis. Because the public generally respected the Court as an institution and revered the Constitution, this would give the Republicans a strong campaign issue.75 Republicans would be able to cast themselves as defenders of the constitutional faith and denounce the Democrats as destroyers of the Constitution.76 Partly because Roosevelt himself believed the Constitution already authorized his reforms, he concluded that it was the membership of the Court that was the problem and moved to the “Court-packing” option.77
This last reason is especially interesting for our purposes, because it provides concrete evidence that rule-of-law constitutionalism is self-defeating. The rule of law needs respect for law in order to work properly, but respect too easily becomes reverence when the law in question is the fundamental law of the nation. Such a law is seen as an ideal normative standard and becomes identified with the nation itself. It thus is the focus of strong patriotic sentiments. Such sentiments prevent even reasonable constitutional changes when they become necessary, because proposed changes imply that the national political order and its values are seriously defective. Since Americans do not believe that the values endorsed by the framers and solemnly reaffirmed by subsequent generations are defective, this creates an enormous roadblock to rational constitutional reform. Rule-of-law constitutionalism requires that the Constitution be changed through amendment in response to significant change in the duties and responsibilities of government, but this kind of change is rendered impossible by the reverence that the rule of law inspires.78
An even more important consequence flows from this reverence feedback effect and the other arguments against amending the Constitution considered by Roosevelt. The option available to state governments of responding to change by inserting specific regulative rules into the constitutional text is closed for the national government. All of the significant constitutional changes initiated by the national government in the twentieth century had to occur through non-Article V means. This bias against change through amendment was further reinforced by the growing institutionalization of American politics over time, especially after the New Deal.79 “As the Republic has matured, its government has become further established and resistant to change. Citizens and groups have become increasingly attached to established practices,” not to mention the commitment of officeholders themselves to the political status quo.80 Any amendment with significant policy-structuring effects is thus bound to attract substantial opposition. Since a large degree of consensus is required to pass any constitutional amendment, passing any important constitutive change is practically impossible.81
Taken together, the various changes in the structure of the national government made through non-Article V means during the New Deal, World War II, and the Cold War amounted to a major program of constitutional reform. The political branches were given plenary authority to maintain a welfare state and generally provide for the nation’s economic well-being.82 The presidency experienced the greatest change. Under Roosevelt, the president became chief legislator as Congress looked to him to take the initiative in proposing measures to cope with the Depression.83 The president was also in charge of the permanently large military and intelligence bureaucracy and became accustomed to taking unilateral military action during the Cold War.84 Once the public demanded action on a perceived policy problem, there appeared to be no important limits to the new power of the political branches.
“Non-Article V means” thus does not stand primarily for judicial interpretation. Since amendments were not passed clarifying the Civil War Amendments with respect to the equal rights of black citizens or providing for regular reapportionment of state legislatures, the Supreme Court was forced to take on these tasks.85 But the sheer scale of the changes required in the duties of the national government after the New Deal precluded the Court from having a dominant role with respect to delineating the new powers of the political branches in domestic and foreign affairs. After the New Deal, the Court generally let Congress define the boundaries of its own authority by refusing to read constitutional grants of power as limits on legislative power.86 Indeed, the major reforms of the New Deal could not properly take root until the Court recused itself from any significant role in reviewing legislation affecting the economy under the Constitution. “In the years after 1937, the Supreme Court essentially offered the Congress carte blanche to regulate the economic and social life of the nation, its actions subject only to the requirements of the Bill of Rights.”87 Much the same thing happened in the countries that adopted new constitutions after World War II. In order to facilitate acceptance of the welfare state, these countries avoided placing language into their constitutions that could be read by the judiciary as an invitation to hold economic-regulatory legislation unconstitutional.88 The Court also consistently refused to put significant restraints on presidential discretion in the area of military conflicts and foreign affairs.89
The pattern here seems clear enough. Once the political branches made the determination to assume new powers, the Supreme Court was in no position to resist this development for long. The Court did not even have the alternative of maintaining a minimal standard of review—it simply had to stay out of the way. The experience of other nations suggests that, once a welfare state is created, judicial interference with economic matters cannot be tolerated. Because it could not regularly review whether the political branches were legitimately exercising their new powers under the Constitution, the Court became a policy specialist, largely concerning itself with whether state legislation met the national moral standards found to be implicit in the Bill of Rights and Civil War Amendments.90 The political branches were thus primarily responsible for determining the scope of their own powers through a process of argument, negotiation, and compromise.91
This is what is meant by the move from “theory” to “politics.” American constitutionalism has moved from the theory that the entire Constitution could remain separate from politics to a situation, caused by the transformation of the national government in the twentieth century, where the meaning and point of most of the key constitutive provisions of the Constitution are determined through the normal interaction of the political branches, usually without recourse to judicial review. While it is possible for the political branches to change their interpretations of the Constitution through legalistic procedures involving carefully reasoned written arguments (as change is supposed to occur in the judicial branch), change does certainly not have to happen in this manner, and one suspects usually it does not. Instead, the political branches alter the Constitution in the course of ordinary political struggles, often without much attention to what the legal profession would surely claim are independent constitutional values.
Since the judiciary is the only branch of government capable of providing an interpretation of the Constitution that does not simply reflect the balance of power between Congress and the president, the original hope of the framers that there would be a strict separation between constitutional law and politics is now preserved, albeit potentially, only with respect to those provisions of the Constitution that the Supreme Court regularly interprets. It has already been noted that these provisions are largely contained in the Bill of Rights and Civil War Amendments and that they are usually applied only to state legislation. It is worth briefly noting why this has to be the case. If the Supreme Court were to attempt to develop standards (as it did before the New Deal) that could routinely alter outcomes agreed to by the political branches, Roosevelt’s “Court-packing” plan would revive and the members of the Court responsible for these new standards would soon find themselves outvoted as Congress increased the size of the Court by appointing justices more attuned to the needs of the political branches.92 The political branches cannot tolerate continuous interference with their ongoing process of partisan mutual adjustment. Historical change has confined the promise of constitutionalism to a narrow area of policy.
Another consequence of the fact that most constitutional change occurs through non–Article V means is that, as time goes on, the text of the Constitution is less and less informative about the way the government actually operates, as most change occurs “off-text.” There has been a convergence in this respect between the constitutional traditions of the United States and Great Britain—as the British constitution became more written and formalized over time, the American Constitution became encrusted with political compromise and judicial interpretation.93 More constitutional truth can be obtained by examining the way government operates than by reading the document. To develop a new model of the way the U.S. constitutional-political system operates, we must take the political branches into account, since judicial review affects only a comparatively small portion of the Constitution.
To understand the structure of post–New Deal constitutionalism, it is necessary to make two crucial distinctions: (1) a distinction between the constitutional change that occurs in the course of the interaction of the political branches (which includes most significant twentieth-century constitutional change) and the change that is initiated by the judiciary in the “sphere of adjudication,” and (2) a distinction within the sphere of adjudication between decisions of the Supreme Court that affect the national government and those that affect the states. Without the first distinction, it is difficult to understand constitutional developments that only tangentially affect the judiciary—such as Watergate, the resurgence of Congress, and the general crisis of confidence in government experienced during the 1970s. Without the second distinction, it is difficult to appreciate the special role of the Supreme Court in the American constitutional system. Most of the controversial Court decisions after the New Deal concerned state legislation, and the Court has what power it has largely because it has not directly opposed the political branches and has taken issues off the national legislative agenda that politicians would prefer not to deal with.94 The second distinction suggests that in cases involving civil rights and civil liberties there are, in effect, two sets of constitutional standards: a relatively stringent set of standards for state governments and a much looser, deferential set of standards for the national government. One is more likely, for example, to encounter stronger civil libertarian language and unanimity in the Court’s opinion when state legislation is in play than when acts of the executive branch are in question.95
The American constitutional-political system has this two-tier structure because of the dominance of the political branches in the post–New Deal landscape. The New Deal reforms may have been justifiable under the Constitution, but the political branches were not interested in allowing the judiciary even a minimal role in reviewing important policies and thus taking the chance that the Supreme Court would again begin striking down needed legislation. So most constitutional change occurred through non-Article V, nonjudicial means, and when the judiciary did review the actions of the political branches, it usually adopted a deferential posture. The Court gradually discovered, however, that deference was not necessary when it reviewed state legislation. Once it became apparent that there were severe deficiencies in state and local government after World War II, the Court was able to inaugurate a new era of judicial activism.96 The Court applied constitutional standards to the states that it never would have been able to apply to the national government.
In its initial commitment to a written constitution and some version of rule-of-law constitutionalism at the national level and its later turn to complete reliance on non-Article V means to cope with significant constitutional change, the United States is unique. Great Britain rejected the idea of a written fundamental law from the eighteenth century onward, and other liberal-democratic nations adopted new constitutions in the twentieth century that differed from the American model in that they were longer, contained more regulative rules, were easier to amend, and took more explicit account of the need for a powerful national state.97 The United States adapted to historical change not by creating a new constitutional text but by ensuring that the new powers of the national government would not be subject to independent constitutional review by the judiciary. Nevertheless, the difficulty of amendment may be one of the most serious political problems facing the United States as the Constitution enters it third century.
We are now in a better position to assess claims of the U.S. Constitution’s success. It is apparent that the standards that are often used to support claims of success are inappropriate. Claiming that the Constitution has been a success because of its longevity means little because not much was required of the constitutional system for most of the first 140 years of its existence. And as Joyce Appleby once remarked, even if we stipulate that the Constitution “still works after 200 years,” we must never forget “that it was in the shop for at least four of those years between 1861–65,” and if we count the heyday of Reconstruction, for almost a dozen years.98 Claims of success based on the relative infrequency of important amendments are unfounded because all significant constitutional change that took place after the national government assumed important responsibilities occurred through non-Article V means. The analysis presented in Part I seems valid: Since rule-of-law constitutionalism cannot work, the Constitution cannot be adapted to change by altering its important constitutive provisions. Change can only occur by loading the Constitution with regulative rules that reflect the political compromises of the day, or through non-Article V means. State governments were free to employ the former course because they were not burdened by undue reverence for their constitutions. Partly because of the reverence for the federal Constitution, however, the political branches found that they had to employ the latter course during the New Deal.
The whole idea that the Constitution has worked fairly well, to say nothing of being an outright success, begins to look quite fraudulent. The constitutional disasters of the mid-nineteenth century make any realistic on-balance assessment a draw at best. Most claims of the Constitution’s success or adequacy, however, are not realistic. They are better understood as expressions of national ideology and patriotic sentiment, rather than as a cold evaluation of American political institutions. Such claims do not refer to a fallible constitutional system, but express an identification of the Constitution with the nation. As such, they are really claims that the American nation has been a success, that the American people have been a success, or that American history has been a success.
More important, since most of the change in the American constitutional system occurs through the interaction of the political branches, an evaluation of how that system is working cannot be independent of an evaluation of present U.S. politics and political outcomes. Since evaluations of the way the American political system is working are usually far more critical than evaluations of the Constitution, this implies that there may be far more to be said for making changes in present constitutional arrangements than is usually thought. Although important constitutive changes have occurred without formal amendment, there are certain constitutive changes (such as altering the terms of members of Congress, changing the ballot format to abolish ticket splitting, or moving to a parliamentary system) that can be made only formally.99 If it is the case that present policy difficulties can be resolved only through constitutive amendments of this kind, then the United States may be in serious trouble.
The recent revival of proposals for constitutional reform are largely motivated by the persistence of gridlock in government (including a long period of a government divided between a Democratic Congress and a Republican president) and various policy disasters of the past two decades.100 Such proposals are not presently being given serious discussion in national politics, but this could easily change. The United States may be entering a period similar to the Progressive Era (roughly 1900–1920), in which far-reaching changes in the structure of the economy will lead to significant changes in the constitutional-political system. In the Progressive Era the concern was that the national government was unprepared to deal with the challenges posed by new forms of business organization (the trusts). The Sixteenth and Seventeenth Amendments were one form of response to these challenges.101 The motivation for constitutional change in the present may be the sense that the U.S. standard of living is declining relative to other nations (such as Japan and Germany) whose state and corporate structures are better integrated than our own.
Even if political elites and a majority of the public perceive a problem with the structure of American government, however, it is not at all clear that the necessary amendments could be approved. All of the difficulties that stymied proposals for amendments during the New Deal are still present (with the possible exception of judicial hostility).102 Fortunately for the New Deal, the constitutive changes required could occur without recourse to Article V. The United States may not be so fortunate in the future. The United States may come to a point where the need for a constitutive change that can be made only through formal amendment is clearly recognized, yet because of the opposition of a minority of citizens in a minority of state legislative houses, change is still impossible. This would be a kind of ultimate constitutional failure. The tradition of American constitutionalism would have failed because it makes fundamental change too difficult.
If it is the case that important constitutive amendments cannot be made, then it may be that the United States has come to the end of constitutionalism as a distinctive and meaningful political idea—not the end in the sense that the Constitution is irrelevant to present political outcomes, for clearly it is quite relevant, but, rather, in the sense that Americans have lost the confidence, present in the late eighteenth century, that they have the ability rationally to diagnose fundamental problems of their political order, discuss those problems openly, and resolve them through a special political process that results in changes to the text of the Constitution. Ironically, the framers of the Constitution began this process by identifying the Constitution with the nation and initiating the slow institutionalization of American politics. Whether this victimization by history will actually help cause a national decline in wealth and power is another question, but present circumstances do not look favorable.103
If constitutionalism is understood in terms of the principle that the government must be restrained through written provisions that have the force of law, the American experience with the activist state raises serious questions about the viability of this principle. To restrain government, such provisions must have a meaning independent of the shifting balance of power between the political branches, but such an independent meaning can only be guaranteed by the judiciary. Since the new powers assumed by the political branches were insulated from judicial review, the provisions of the Constitution cannot function as restraints on government in any strong sense. It appears that the eighteenth-century concept of constitutionalism is compatible only with the kind of limited government the framers were familiar with. The Constitution that the framers created may well prevent Americans from making the kind of structural reforms that may be necessary to cope with the policy challenges of the next century.
The author gratefully acknowledges the helpful comments made on an earlier draft of this article by Cass Sunstein.
1 See generally Michael Kammen, A Machine That Would Go Of Itself: The Constitution in American Culture (New York: Alfred A. Knopf, 1986); Richard B. Bernstein, “Charting the Bicentennial,” Columbia Law Review, 87 (1987): 1565.
2 See, e.g., William Bradford Reynolds, “Another View: Our Magnificent Constitution,” Vanderbilt Law Review, 40 (1987): 1343.
3 See Sanford Levinson, Constitutional Faith (Princeton: Princeton University Press, 1988), pp. 10–15; Gordon S. Wood, “The Fundamentalists and the Constitution,” New York Review of Books, February 18, 1988, p. 33.
4 Reynolds, “Another View,” p. 1351.
5 See Donald L. Robinson, ed., Reforming American Government: The Bicentennial Papers of the Committee on the Constitutional System (Boulder, Col.: Westview Press, 1985).
6 See Herbert Wechsler, “Reflections on the Conference,” in The Revolution, The Constitution, and America’s Third Century: The Bicentennial Conference on the United States Constitution, Conference Discussions (Philadelphia: University of Pennsylvania Press, 1980), pp. 451, 458; “Final Report of the Seventy-third American Assembly,” in Burke Marshall, ed., A Workable Government? The Constitution After 200 Years (New York: Norton, 1987), pp. 235–36.
7 See, e.g., William Van Alstyne, “Notes on a Bicentennial Constitution: Part I, Processes of Change,” University of Illinois Law Review (1984): 941.
8 See, e.g., Thurgood Marshall, “Reflections on the Bicentennial of the United States Constitution,” Harvard Law Review 101 (1987): 5.
9 Stephen R. Munzer and James W. Nickel, “Does the Constitution Mean What It Always Meant?” Columbia Law Review 77 (1977): 1045.
10 Charles Howard McIlwain, Constitutionalism Ancient and Modern (Ithaca: Cornell University Press, 1940), p. 24. See also Rune Slagstad, “Liberal Constitutionalism and Its Critics: Carl Schmitt and Max Weber,” in Constitutionalism and Democracy, ed. Jon Elster and Rune Slagstad (New York: Cambridge University Press, 1988), pp. 108–9.
11 See R. R. Palmer, The Age of the Democratic Revolution: The Challenge (Princeton: Princeton University Press, 1959), 1:234.
12 Ibid., pp. 215, 224.
13 See Cecelia M. Kenyon, “Constitutionalism in Revolutionary America,” in Constitutionalism: Nomos XX, ed. J. Roland Pennock and John W. Chapman (New York: New York University Press, 1979), pp. 84, 114–15. See generally Philip A. Hamburger, “The Constitution’s Accommodation of Social Change,” Michigan Law Review 88 (1989): 239–327.
14 I take the terms constitutive and regulative from Stephen Holmes, who uses them for a somewhat different purpose. Stephen Holmes, “Precommitment and the Paradox of Democracy,” in Elster and Slagstad, Constitutionalism and Democracy, pp. 195, 227.
15 Most of the provisions of the Constitution have some constitutive effect. Examples of parts of the Constitution that mainly function as constitutive provisions include those providing for the manner of representation and election to the House of Representatives and the Senate in Art. I, secs. 2–3; the enumeration of the powers of Congress in Art. I, sec. 8; the powers of the president in Art. II, secs. 1–2; the privileges and immunities clause in Art. IV, sec. 2; and most of the Bill of Rights, including the First, Fifth, and Eighth Amendments.
16 Examples of parts of the U.S. Constitution that mainly function as regulative provisions include the clause respecting titles of nobility in Art. I, sec. 9, clause 8; the specification of treason in Art. III, sec. 3; the fugitive slave provision in Art. IV, sec. 2, clause 3; and the Third Amendment.
17 See, e.g., Ronald Dworkin, Law’s Empire (Cambridge: Harvard University Press, 1986), pp. 65–68.
18 See H. Jefferson Powell, “How Does the Constitution Structure Government?” in Marshall, A Workable Government?, pp. 13, 16–17.
19 Quoted in Gordon S. Wood, The Creation of the American Republic, 1776–1787 (Chapel Hill: University of North Carolina, 1969), p. 377.
20 Alexis de Tocqueville, Democracy in America, trans. George Lawrence (New York: Doubleday, 1969), p. 270.
21 See, e.g., Mirjan R. Damaska, The Faces of Justice and State Authority: A Comparative Approach to the Legal Process (New Haven: Yale University Press, 1986), pp. 46, 68.
22 In a letter to Senator Wilson C. Nicholas on September 7, 1803, Jefferson stated:
When an instrument admits two constructions, the one safe, the other dangerous, the one precise, the other indefinite, I prefer that which is safe & precise. I had rather ask an enlargement of power from the nation, when it is found necessary, than to assume by a construction which would make our powers boundless. Our peculiar security is in the possession of a written Constitution. Let us not make it a blank paper by construction…. I confess, then, I think it important, in the present case, to set an example against broad construction by appealing for new power to the people.
Jefferson eventually agreed not to push for an amendment to the Constitution, saying that “the good sense of our country will correct the evil of construction when it shall produce ill effects.” Quoted in Everett S. Brown, The Constitutional History of the Louisiana Purchase, 1803–1812 (Berkeley: University of California Press, 1920), p. 28. For a contemporary example of rule-of-law constitutionalism, see Raoul Berger, Government by Judiciary (Cambridge: Harvard University Press, 1977).
23 The Federalist, No. 49 (James Madison), ed. Clinton Rossiter (New York: New American Library, 1961), pp. 313–15. See Levinson, “ ‘Veneration’ and Constitutional Change,” 21 Texas Tech Law Review 2443 (1990).
24 Ibid., p. 314.
25 Kammen, A Machine That Would Go of Itself, p. 18 (quoting James Russell Lowell).
26 See Kenneth M. Stampp, “The Concept of a Perpetual Union,” Journal of American History 65 (1978): 5, 11, 19–20.
27 Ibid., p. 20.
28 See Phillip S. Paludan, “The American Civil War Considered as a Crisis in Law and Order,” American Historical Review 77 (1972) 1013, 1021.
29 See ibid.; see also Loren P. Beth, The Development of the American Constitution, 1877–1917 (New York: Harper and Row, 1971), pp. 249–50.
30 See Paludan, “The American Civil War.”
31 See William E. Nelson, The Fourteenth Amendment: From Political Principle to Judicial Doctrine (Cambridge: Harvard University Press, 1988), pp. 27–30.
32 See Harold M. Hyman, A More Perfect Union: The Impact of the Civil War and Reconstruction on the Constitution (New York: Alfred A. Knopf, 1975), pp. 546–47; Morton Keller, Affairs of State: Public Life in Late Nineteenth Century America (Cambridge: Harvard University Press, 1977), pp. 35, 289, 312, 318.
33 Nelson, The Fourteenth Amendment, p. 27.
34 See Kermit L. Hall, The Magic Mirror: Law in American History (New York: Oxford University Press, 1989), pp. 102–4.
35 As well demonstrated by Donald Lutz’s article in this volume, state constitutions have with some frequency been subjected not only to “amendment,” but also to outright substitution by successor documents drafted by state constitutional conventions.
36 See William M. Wiecek, “The Witch at the Christening: Slavery and the Constitution’s Origins,” in The Framing and Ratification of the Constitution, ed. Leonard W. Levy and Dennis J. Mahoney (New York: Oxford Press, 1987), pp. 167, 183–84. See also Richard E. Ellis, The Union at Risk: Jacksonian Democracy, States’ Rights, and the Nullification Crisis (New York: Oxford Press, 1987); William Freehling, The Road to Disunion: Secessionists at Bay (New York: Oxford Press, 1990).
37 See Arthur Bestor, “The American Civil War as a Constitutional Crisis,” reprinted in American Law and the Constitutional Order: Historical Perspectives, ed. Lawrence M. Friedman and Harry N. Scheiber (Cambridge: Harvard Press, 1978), p. 219.
38 See William M. Wiecek, The Sources of Antislavery Constitutionalism in America, 1760–1848 (Ithaca: Cornell University Press, 1977), p. 285.
39 Ibid.
40 See Alfred H. Kelly, Winfred A. Harbison, and Herman Belz, The American Constitution: Its Origins and Development, 6th ed. (New York: Norton, 1983), pp. 290–91; Ellis, The Union at Risk, pp. 183, 185.
41 See David M. Potter, The Impending Crisis, 1848–1861 (New York: Harper and Row, 1976), p. 389.
42 Ibid., p. 471; Kammen, A Machine That Would Go of Itself, p. 63.
43 Hyman, A More Perfect Union, p. 111 (quoting constitutionalist Sidney George Fisher, writing in 1862).
44 Bestor, “The American Civil War,” p. 220.
45 See James M. McPherson, Battle Cry of Freedom: The Civil War Era (New York: Oxford Press, 1988), pp. 818–19, 854.
46 On the problems of the Weimar Constitution that helped Hitler seize power, see Gordon A. Craig, Germany, 1866–1945 (Oxford: Clarendon Press, 1978), pp. 415–24.
47 See McPherson, Battle Cry of Freedom, pp. 233, 358, 558; Eric Foner, Reconstruction: America’s Unfinished Revolution, 1863–1877 (New York: Harper and Row, 1988), pp. 244–45.
48 McPherson, Battle Cry of Freedom, pp. 860–61 (footnote omitted).
49 Kelly, Harbison, and Belz, The American Constitution, pp. 300, 306.
50 See Richard B. Bernstein with Jerome Agel, Amending America (New York: Times Books, 1993), pp. 102–3, 109, 115. This reality is, of course, a basic foundation of Bruce Ackerman’s argument about constitutional change in the United States, as summarized in this volume and set out more fully in We the People (Cambridge: Harvard University Press, 1991).
51 See Keller, Affairs of State, p. 207.
52 See Harold M. Hyman and William M. Wiecek, Equal Justice Under Law: Constitutional Development, 1835–1875 (New York: Harper and Row, 1982), pp. 455–56.
53 Robert J. Kaczorowski, The Politics of Judicial Interpretation: The Federal Courts, Department of Justice and Civil Rights, 1866–1876 (New York: New York University Press, 1985), p. 54.
54 Keller, Affairs of State, p. 224.
55 See Foner, Reconstruction, p. 245, 425–26, 442–44, 558–63.
56 See Hyman and Wiecek, Equal Justice Under law, p. 493; Keith Ian Polakoff, The Politics of Inertia: The Election of 1876 and the End of Reconstruction (Baton Rouge: Louisiana State University Press, 1973), pp. 223–24.
57 See Hyman, A More Perfect Union, pp. 380–82.
58 Ibid., pp. 136–37.
59 See Keller, Affairs of States, p. 42.
60 Ibid., pp. 312, 318.
61 See Stephen Skowronek, Building A New American State: The Expansion of National Administrative Capacities, 1877–1920 (New York: Cambridge University Press, 1982), pp. 165–69.
62 See Van Alstyne, “Notes on a Bicentennial Constitution,” pp. 941–42.
63 See Alan P. Grimes, Democracy and the Amendments to the Constitution (Lexington, Mass.: Lexington Books, 1978), p. 2.
64 See Keller, Affairs of State, pp. 35, 106, 289.
65 Ibid., pp. 111–13, 319–20.
66 See Grimes, Democracy, p. 96.
67 Thus Ackerman describes the New Deal as America’s third great “constitutional moment,” following only the 1787–88 convention and ratification of the original Constitution and the addition of the Reconstruction Amendments between 1865 and 1870.
68 See William E. Leuchtenburg, “The Origins of Franklin D. Roosevelt’s ‘Court-Packing’ Plan,” Supreme Court Review (1966): 347, 362–65, 384. See also the excellent article by David E. Kyvig, “The Road Not Taken: FDR, the Supreme Court, and Constitutional Amendment,” Political Science Quarterly 104 (1989): 463–81.
69 Leuchtenburg, “The Origins of Franklin D. Roosevelt’s ‘Court-Packing’ Plan,” p. 384.
70 Kyvig, “The Road Not Taken,” pp. 473–76.
71 Leuchtenburg, “The Origins of Franklin D. Roosevelt’s ‘Court-Packing’ Plan,” p. 386.
72 Ibid., pp. 384–85.
73 Ibid., p. 384.
74 Ibid., p. 378.
75 See ibid., p. 368; William Lasser, The Limits of Judicial Power: The Supreme Court in American Politics (Chapel Hill: University of North Carolina Press, 1988), p. 144.
76 Ibid., pp. 151–52.
77 Ibid., p. 152.
78 I leave aside the issue, which I consider elsewhere, of whether this reverence exists primarily among the mass public or political elites. See Stephen M. Griffin, “What Is Constitutional Theory? The Newer Theory and the Decline of the Learned Tradition,” Southern California Law Review 62 (1989): 493, 525–29.
79 See generally John E. Chubb and Paul E. Peterson, “Realignment and Institutionalization,” in John E. Chubb and Paul E. Peterson, eds., The New Direction in American Politics (Washington, D.C.: Brookings Institution, 1985), p. 1. See also Stephen Skowronek, The Politics Presidents Make (Cambridge: Harvard University Press, 1993).
80 Chubb and Peterson, “Realignment and Institutionalization,” p. 6.
81 See James L. Sundquist, Constitutional Reform and Effective Government (Washington, D.C.: Brookings Institution, 1986), pp. 13–14.
82 See Kelly, Harbison, and Belz, The American Constitution, pp. 485–86, 509, 518, 665.
83 See William E. Leuchtenburg, Franklin D. Roosevelt And The New Deal, 1932–1940 (New York: Harper and Row, 1963), pp. 327, 331. James L. Sundquist, “The Question Is Clear, and Party Government Is the Answer,” William and Mary Law Review 30 (1989): 425, 427.
84 See Kelly, Harbison, and Belz, The American Constitution, p. 574.
85 See, e.g., Brown v. Board of Education, 347 U.S. 483 (1954); Reynolds v. Sims, 377 U.S. 533 (1964).
86 See Laurence H. Tribe, American Constitutional Law, 2d ed. (Mineola, N.Y.: Foundation Press, 1988), pp. 304, n.13.
87 Ibid., p. 386 (footnote omitted).
88 See Edward McWhinney, Supreme Courts and Judicial Law-Making: Constitutional Tribunals and Constitutional Review (Boston: M. Nijhoff, 1986), p. 222.
89 See Richard A. Watson and Norman C. Thomas, The Politics of the Presidency, 2d ed. (Washington, D.C.: CQ Press, 1988), p. 355.
90 See Lawrence Baum, The Supreme Court, 2d ed. (Washington, D.C.: CQ Press, 1985), pp. 160, 172. For a more detailed presentation of this theme, see Stephen M. Griffin, “Politics and the Supreme Court: The Case of the Bork Nomination,” Journal of Law and Politics 5 (1989): 551.
91 See generally Louis Fisher, Constitutional Dialogues: Interpretation as Political Process (Princeton: Princeton University Press, 1988).
92 See the discussion in Daniel A. Farber and Philip P. Frickey, Law and Public Choice (Chicago: University of Chicago Press, 1991), p. 71.
93 See Carl J. Friedrich, The Impact of American Constitutionalism Abroad (Boston: Boston University Press, 1967), p. 12.
94 For this analysis, see Griffin, “Politics and the Supreme Court.” See also Mark Graber, “The Non-Majoritarian Difficulty: Legislative Deference to the Judiciary,” Studies in American Political Development 7 (1993): 35.
95 Compare, for example, Brandenburg v. Ohio, 395 U.S. 444 (1969), with New York Times v. United States [The Pentagon Papers Case], 403 U.S. 713 (1971).
96 The Court’s main areas of activism are summarized in Griffin, “Politics and the Supreme Court,” pp. 583–84. They included: (1) civil rights for black citizens, including decisions respecting desegregation and school bussing; (2) reapportionment of congressional districts and state legislatures; (3) prohibition of mandatory prayer in public schools; (4) increased constitutional protection for those accused of criminal offenses; (5) protection through the right of privacy for reproductive activities and family relationships.
97 See, e.g., Mary Ann Glendon, Rights Talk (New York: Free Press, 1991), pp. 145–70. See also Donald Lutz’s essay in this volume, especially Table 12 on the relative difficulty of amending various national constitutions.
98 Appleby made this remark while participating in a Smithsonian Institution symposium on the Constitution’s bicentennial in 1987, in reference to a button—“Still Working After 200 Years”—worn by Michael Kammen (eyewitness testimony supplied by Sanford Levinson).
99 For a review of these proposals, see Sundquist, Constitutional Reform.
100 See Robinson, Reforming American Government. See also the articles in John E. Chubb and Paul E. Peterson, eds. Can the Government Govern? (Washington, D.C.: Brookings Institution, 1989).
101 See Grimes, Democracy. The Sixteenth Amendment, adopted in 1913, gave Congress the power to impose an income tax. The Seventeenth Amendment, also adopted in 1913, provided for the direct election of senators by the people, instead of by state legislatures.
102 See James L. Sundquist, The Decline and Resurgence of Congress (Washington, D.C.: Brookings Institution, 1981), pp. 466–67.
103 See generally Paul Kennedy, The Rise and Fall of the Great Powers: Economic Change and Military Conflict from 1500 to 2000 (New York: Random House, 1987).