LAW is composed of a variety of ambiguous texts.1 Some of our texts, including provisions of the Constitution such as the equal protection clause of the Fourteenth Amendment, invite virtually unending debates about meaning. Other constitutional provisions, however, seem rather straightforward. Consider, for example, Article I, section 1, which fore-closes the possibilities of Congress’s consisting of fewer or more than two houses; the terms for senators being other than six years; or a twenty-year-old serving even as a representative, let alone president. These texts seem clear. Of course, one can cavil. Must a presidential aspirant be thirty-five at the time of election or inauguration? Nevertheless, though questions can perhaps be tortuously raised, the text itself is fundamentally clear,2 and if we can debate meaning at all, it is only at the periphery.
The meaning of Article V—arguably the single most important procedural provision in the Constitution, governing, as it does, how we may alter the Constitution—is an example of yet another text the meaning of which is essentially clear.3 To be sure, it is not altogether without ambiguity. “Two thirds of both Houses” could mean two-thirds of each house, that is, two-thirds of each the House and the Senate, or it could mean two-thirds of the two houses sitting together. Further, the use of the phrase “Intents and Purposes” seems nearly to invite readers of constitutional amendments to dig beneath the words on the parchment. Nevertheless, the procedure delineated in Article V as to modes of originating proposed amendments and of subsequent ratification seems quite clear. Questions remain,4 yet questions are also answered—or so it appears from the text. Indeed, I argue that the mechanism outlined in Article V clearly and unequivocally sets out an exclusive mode of constitutional amendment.
Federal courts—by definition nonmajoritarian institutions—periodically strike down acts of the legislature on the grounds that the legislative enactments contravene certain provisions of the Constitution. This so-called “countermajoritarian difficulty” has caused constitutional scholars a great deal of consternation. It is, I think, what drives efforts—represented in this volume especially in the essays of Ackerman, Amar, Griffin, and Levinson—to justify extra-Article V theories of amendment. Advocates of judicial review have struggled to reject Alexander Bickel’s characterization of the Supreme Court as a “deviant” institution—deviant because in our basically democratic polity, the Court at times thwarts the ostensible will of the majority.5 Both judges and academicians have struggled mightily, but fruitlessly, to resolve the difficulty.6
The so-called “difficulty,” however, is not resolvable.7 Bickel, as well as his answerers, have failed to appreciate that the countermajoritarian difficulty simply illustrates that we hold competing beliefs. In the United States, we believe in,8 and our political institutions reflect, majority rule. At the same time, we also believe that not everything ought to be subject to it. Following the majority because it is the majority is sometimes obligatory; resisting the majority even though it is the majority is sometimes required. Two competing principles constitute the essence of our political being, and this raises a terribly difficult question: How do we know which to follow when?
In recent years scholars, most certainly including Ackerman and Amar, have seized upon the notion of popular sovereignty as the tool of reconciliation.9 The notion of popular sovereignty and the principle of majority rule are conceptually distinct. When we talk of popular sovereignty in the United States, we usually mean to refer to some power held by the people.10 By sovereignty, specifically, we mean “unfettered power of legislation.”11 The very idea of popular sovereignty acquires meaning by virtue of its juxtaposition to theories holding that the source of legislative authority is other than the people—that it lies, for example, in the king or in God.12 By popular sovereignty, therefore, we mean that the people, in contradistinction to God or the king, hold this power.13
Once sovereignty is understood to be popular—once the power of legislation is understood to be in the hands of the people—it follows ineluctably that the law comes from the people.14 The definition of “people” poses an initial obstacle, but because the theory pertains solely to the source of legislative authority, it need not preclude an evolving or expanding conception of “people.” We can say, in other words, that the framers held an impoverished notion of “people” without saying, necessarily, that their parochial notion of people belied their commitment to the idea of popular sovereignty.
Recent work indeed suggests that the Framers were committed to this idea.15 However, it is quite difficult to ascertain whether the theory was viewed by the Framers—or, for that matter, whether contemporaries view it—as a prescriptive or descriptive proposition. Do we (or did the Framers) believe that law ought to come from the people, or only that it does? The question is not entirely academic, because any legal theory that rests upon the Framers’ intent presumes that the Framers believed that they were shaping the polis and not merely describing it.
In any event, the idea of popular sovereignty does not entail rule by majority will. Although popular sovereignty can be understood as 50 percent plus one, it can also be understood as a plurality, a supermajority, or even the will of an appointed oligarchy of lawmakers. In addition, even at the level of pure political theory, the rule of the majority is not coextensive with popular sovereignty since the majority acts out its desires through legislatures, and legislatures may represent the popular will only imperfectly.16 Majority rule is a practical (and normative) rule of who wins. Popular sovereignty is a theoretical view of who does, or who ought to, have power. Neither notion entails the other.
Students of political thought tend to locate the ascendancy of theories of popular sovereignty in the sixteenth-century reformist movements.17 However, since popular sovereignty and majoritarianism are conceptually distinct, these historical inquiries do not help us to determine when majoritarianism emerged or how a majoritarian democracy ought to operate from an ethical point of view, or, more important, how the Framers intended it to operate.18 Theories of sovereignty are political theories (or perhaps religious theories). Majority rule is practical politics (though it may be defensible from the standpoint of secular morality as well).19 As a practical matter, then, what is primarily significant in the United States is not so much our putative belief in popular sovereignty as our commitment to majoritarianism. This is significant because, as is obvious (albeit philosophically problematic), our commitment to majoritarianism is severely circumscribed.
Consider one of the earliest discussions of majority rule, which occurs in the Torah and ensuing commentary by the rabbis. Exodus 23:2 warns that we “not follow a multitude to do evil.” From this negative injunction, the talmudic rabbis inferred that, except when the majority is doing evil, it is commanded to follow the majority.20 At the same time, and in contrast, the most general, overarching principle of Jewish law is not to follow the majority, but to do what is just and good.21 In many instances and numerous contexts, the legal code defines what it is that is just and good, but not always. As a result, the just-and-good desideratum can act as an exception to a particular rule; it even can act as an exception to a rule enunciated by a majority. The principle of majority rule does not override the overarching commandment to do what is “just and good.”22
Implicit in this legal structure is protection of minority interests. That is, it may be “just and good” to protect the minority even when the majority would not be so inclined.23 Similarly, as Walter Murphy insists in his essay in this volume, our American political commitment to majoritarianism is likewise qualified and not absolute. We are, after all, a constitutional democracy. Despite our general commitment to majority rule, mere majorities may not legitimately do whatever they want simply because they are majorities.24
The idea of popular sovereignty is not helpful as a tool for constitutional explication because it has no value in reconciling our two elemental beliefs. Do we not believe that we can agree today to bind ourselves tomorrow, and, further, that we can agree today that we shall not have the right tomorrow to change our minds?25 Do we not agree that a majority can (i.e., it has the authority to) agree today that it will take more than a mere majority tomorrow to interfere with the freedom of the press? Do we not believe that a majority can agree today that accused wrongdoers will have certain rights tomorrow even if tomorrow a bare majority of us no longer believes that a particular accused should? Indeed, we believe in each of these propositions, for these make up what our Constitution is.
Congress, according to Article V, shall propose amendments to the Constitution when “deemed necessary” by two-thirds of both houses. Alternatively, Congress shall call a convention for the purpose of proposing amendments when called upon to do so by two-thirds of the states. These are the two exclusive mechanisms for proposing amendments; irrespective of which is employed, a proposed amendment becomes part of the Constitution when ratified by three-fourths of the states. Amending the Constitution is thus made purposefully difficult; advocates of amendment are required to muster broad, substantial, and widespread geographic support for their proposals. Nevertheless, amending the Constitution might not be especially arduous if there is an alternative to Article V, if there is some way to circumvent the rigor ostensibly demanded by the language of the text.
Amar’s theory bypasses, for ratification purposes, the states. He allows a national majority of individuals to ratify a proposed amendment. This could mean that if the citizens of, say, Texas, California, New York, Florida, and Illinois voted overwhelmingly to ratify, it would not matter that mere majorities of voters in the other forty-five states voted against ratification. Moreover, if the ratification is valid for some reason of political theory, then presumably the process might extend to the prior step: A majority of citizens could compel Congress to call the convention.26 Amar’s proposal starkly departs from the text of Article V.
For Amar, the notion of popular sovereignty provides the predicate for the legitimacy of the existing Constitution. It provides as well a mechanism for amending the Constitution outside of Article V. “The People,” Amar argues, are “sovereign, and … a majority of them enjoy[] the inalienable legal right … to alter or abolish their form of government whenever they please.”27 Article V, he concludes, “makes constitutional amendment by ordinary governmental entities possible and thus eliminates the necessity of future appeals to the People themselves. However, future appeals to the People remain sufficient, as a general matter, to effect constitutional change.”28 Article V “should not be understood as binding” the people.29
The first thing we need to do is to be clear about what we are talking about. Amar equivocates between the assertion that the people retain the “right” to amend outside Article V and the claim that they possess the power to do so. Rights and powers are, of course, quite different.30 Statements about power are statements about physics, and I am not concerned with addressing them here. The people may well have the power to alter the Constitution, but this does not establish that in exercising that power they have acted lawfully. They have acted lawfully only insofar as they have the right to act; hence, Amar’s more pertinent argument is that the people retain the right to amend the Constitution and that this right is inalienable.
The normative basis for this argument, however, is quite unclear.31 On one hand, Amar’s claim about the inalienability of the right to amend outside Article V might be justified by an argument that: (1) this is so under the framers’ theory of popular sovereignty; (2) the framers embodied their political theory (i.e., popular sovereignty) in the Constitution as a normative proposition; (3) we therefore have available to us, for reasons rooted in the Constitution, a certain political theory.32 On the other hand, Amar’s claim might rest on a noninterpretivist basis and posit either that the theory of popular sovereignty is simply true, or that we (either as Americans or as human beings) enjoy a natural or fundamental right that we are without the power to alienate. Under this view, extra-Article V methods of amendment are legitimated not because they are enshrined in the Constitution, but because of our extraconstitutional beliefs.
Amar is apparently not an intentionalist, although it is not clear that he rejects the interpretivist argument. Nevertheless, the interpretivist argument seems readily dispatched by an examination of the primary source of the framers’ intent, which speaks not a whisper about any other mode of amendment.33 Moreover, Amar also deploys his argument as a justification for the original ratification of the Constitution (despite the fact that the procedure utilized departed from that demanded by the Articles of Confederation). Amar’s theory cannot be rooted in the Constitution; it must have its origin elsewhere.
The remaining argument, and the more difficult one to dispatch, is that which is rooted in the transcendent truth of popular sovereignty. But popular sovereignty is an esoteric notion, irrelevant to constitutional interpretation. What matters is the meaning of our normative commitment to majoritarianism, and our commitment to this principle is only partial. We quite clearly believe that the power to amend is alienable; it may be restricted to the mode authorized by Article V.
Ackerman argues that the Constitution can be amended through what he calls a “structural amendment.”34 Although Ackerman does not define this term with rigor, structural amendments are additions to or deletions from the Constitution that come about through the behavior of the voters rather than through the formal amendment mechanism. The relevant behavior of voters is that displayed during elections, particularly presidential elections.
These structural amendments are not written down anywhere or even expressly articulated; they simply “emerge” from the political process, which is to say that they are redacted and ratified as a by-product of elections.35 The basic point is that voters’ attitudes, as those attitudes are expressed in (presidential) elections, can operate to amend the Constitution in a manner consistent with their attitudes.36
Ackerman’s theory posits a distinction between normal politics and constitutional politics. Typically, but not always, constitutional politics consists of episodes such as the constitutional convention and the formal amendment (Article V) mechanism. The characteristics of constitutional politics include predominance of the public over the private and concern for broad interests rather than more narrow concerns. Hence, constitutional politics may, but they need not, operate through the formal Article V mechanism. What is important finally is that the benchmarks of constitutional politics be present.
By studying electoral politics closely, one can ascertain when normal politics has ended and when constitutional politics has begun. Once one has the vision to do this, one can also divine the content of the structural amendment that the voters have enacted through their participation in the process of constitutional politics. Indeed, this apparently is the only way to discern that constitutional politics is operating outside of the Article V mode. Moments of constitutional politics, for Ackerman, amount to “glorious reenactment[s] of the American Revolution.”37
Ackerman utilizes the conceptual dualism between normal and constitutional politics to “dissolve the ‘countermajoritarian difficulty.’”38 Judges are no longer seen as frustrating majorities when they declare acts of Congress unconstitutional; they instead reflect that the people have acted: that the people, by engaging in constitutional politics, have altered the constitutional text and signaled a shift that itself invalidates the legislative enactment under scrutiny. Ackerman locates historical moments tantamount to formal amendment of the Constitution and argues that these moments have effected constitutional change. The first of these moments comprises the framing of the original Constitution together with Marbury v. Madison and McCulloch v. Maryland; the second moment consists of events surrounding the Civil War, including the judicial failure manifested by Dred Scott followed by the Civil War Amendments; the third episode is the emergence during the New Deal of the modern welfare state.39 “Time and again,” Ackerman maintains, “we return to these moments; the lessons we learn from them control the meaning we give to our present constitutional predicaments.”40
Interpretation of historical episodes or eras is thus a key element of the theories of both Ackerman and Amar. For Amar, studying eighteenth-(or perhaps sixteenth-) century history is primarily important as a means to ascertain the dictates of the theory of popular sovereignty, which purportedly underlies the Constitution. Ackerman’s use of history is more sweeping; he suggests that both the Civil War Amendments and the economic legislation of the New Deal era have acquired the status of constitutional law by virtue of the historical circumstances surrounding these moments. Amar’s use of history is ultimately connected to matters of political theory, whereas Ackerman’s use of history is connected more directly to politics. Amar’s history is intellectual history; Ackerman’s is social or political history. Criticizing their respective uses of history therefore involves somewhat different approaches. My discussion of Ackerman’s theory will hew to the political moments upon which he seizes. I shall suggest that, at a minimum, his inferences from those moments are dubious. When I turn to Amar’s theory, I shall focus more on the theory of our Constitution and suggest that his proposal fundamentally misapprehends our constitutional structure. Both theories ignore the nature and the content of our beliefs.
Interpretation cannot proceed without accepted hermeneutical techniques. In American law, both statutory as well as constitutional, one such basic rule is the principle expressio unius est exclusio alterius: The expression of one thing is the exclusion of another.41 It is true, of course, that the applicability of this maxim of interpretation depends upon the intentions of the parties who drafted the document, but I shall argue below that the Framers must be understood to have intended Article V to be exclusive. Even were their intent unfathomable, however, the invocation of this maxim would be appropriate, for Article V must be understood as exclusive not precisely because the framers expected it to be, but because the structure of the government they established depends upon its exclusivity. Consequently, insofar as the primary obstacle to applying the maxim is that it is not always an accurate reflection of the drafters’ intentions,42 this caveat is altogether inapposite in the present context. Article V must be exclusive because if it is not, then the notion of rights collapses of logical necessity.
The stark implication of the Amar or Ackerman proposals is that supermajorities are one mechanism, but simple majorities will also suffice. That implication renders Article V supererogatory. Hence, if the Constitution is to continue to be the ultimate source that protects individual rights against encroachment by government power and political majorities, then the affirmative words in Article V must be understood to negative other conceivable modes of amendment.43
In The Federalist No. 43, Madison described the amendment mechanism as one that would mediate between a Constitution too fixed and one too transient.44 While amending the Constitution must be possible, the process must not be facile. Amendments must be attended by deliberation. Similarly, Hamilton implied in The Federalist No. 85, that the proposed ratification procedure aspired to ensure widespread geographic support.45 Though amending the Constitution would be easier than establishing the Constitution in the first instance, the requirement that ten of the thirteen states approve the proposed amendment would achieve widespread geographic support.46 A desideratum of the amendment process, then, was that it proceed slowly and deliberately, and that it insist upon widespread geographic support. These same values also appear in the discussion of the process at the constitutional convention, though, as was the case with the Federalist Papers, the issue of the Article V amendment process received comparatively little attention at the convention.47 Significantly, apparently at no time did any of the convention delegates express any interest in popular participation in the amendment process,48 i.e., submission of proposed amendments directly to the people. This is not surprising since we would rarely expect to find in ordinary popular elections the degree of deliberation that is attendant to legislative voting.49 By insisting, then, that the amendment procedure be conducted entirely through the legislatures,50 the delegates at Philadelphia emphatically underscored the value of deliberation.
In addition, the delegates declined to give Congress power to frustrate the states. The language of Article V is mandatory, meaning that if the requisite number of states (thirty-four) so demand, Congress must call a convention.51 The delegates purposefully utilized the word shall to express that Congress is required to call the convention if the conditions are satisfied.52 Other references to the importance of widespread geographic and sectional assent are fairly common.53
The framers wanted the Constitution to be amendable but not too amendable. They wanted their work to be subject to revision, but they did not want it to be jettisoned in moments of passion. The requirement of supermajorities, the distinctive core feature of Article V, achieves the framers’ goal of making the amendment process a slow, deliberative one. At the same time, it reflects the belief, prevalent among the framers and prevalent now, that certain rights are not subject to interference by mere majorities.
The majority in our democracy is not entirely free to do as it desires, and it is permitted at time t–1 to agree that only a supermajority will have the lawful power to legislate on certain subjects at time t–2. Jefferson, of course, was troubled by the fact that the Constitution would persist into generations that had not ratified it,54 though this concern seems to have provoked little scholarly attention. Instead scholars since Bickel have fastened on the Madisonian dilemma: the removal by the Constitution of certain issues from the majoritarian process. This dilemma is, as we now know, unresolvable because we believe in both the premises that together make it up.
This suggests that attempts to dissolve the countermajoritarian difficulty (like Amar’s and Ackerman’s) commit the same fallacy that underlies the ostensible difficulty itself. The fallacy of the difficulty is that it rests on a misunderstanding of the ontology of a higher law system:55 It undervalues the extent to which a higher law system, even one fundamentally democratic, intends, on occasion, to frustrate majority will. Displaying the same myopia, Amar and Ackerman endeavor to dissolve the difficulty by transforming even the amendment process into a majoritarian exercise.56
Both Amar and Ackerman dissolve the presumed countermajoritarian difficulty by bowing to majorities; they ease the Madisonian dilemma by dissolving the Constitution. Ackerman ignores the text entirely. Amar, on the contrary, does seek to root himself in the political theory that underlies the text, yet he misapprehends that very theory. In supposing that sovereignty provides an adequate rationale for going outside the text of Article V, and in supposing that this sovereignty is somehow inalienable, Amar, as I discuss below, slights additional structural assumptions also implicit in the Constitution.
Ackerman and Amar ultimately ground their arguments on a historical analogy. The analogy is as follows. The ratification of the Constitution was not in accordance with the plain meaning of the positive law that existed in the colonies in the late eighteenth century. Nevertheless, the Constitution is legitimate, and was even viewed by contemporaries as legitimate, because positive law does not provide the sole means for altering governments. Popular sovereignty (or, for Ackerman, constitutional politics, which amounts to the same thing) also provides a means, and it can be exercised today, even outside the confines of Article V.
The problem here is manifest: Amar, and to a lesser degree Ackerman as well,57 argue that the ratification was defensible despite apparent conflict with existing state law. However, we simply do not know what the outcome of a legal challenge to the legitimacy of the Constitution would have been in 1791. All we can say in retrospect is that Article VII of the Constitution seems illegal in light of the Articles of Confederation, that it appears to be at odds with the then-governing law, and that the ratification of the proposed Constitution by several states apparently violated their own constitutions. Perhaps the theoretical justification that Amar proposes could have been proffered in the 1790s, but it was not. We cannot say, therefore, that a challenge to the Constitution in light of the Articles or a particular state constitution would have failed. Yet that is precisely what we must say if the argument Amar and Ackerman make is to work. The underlying assumption that the Constitution itself is somehow “illegal,” critical as it is to Ackerman’s theory, is simply wrong.58
It is clear, I think, that the meaning of constitutional language, indeed the meaning of constitutional lacuna, often resides in constitutional structure, a point that Ackerman and Amar would not dispute. This structure is bound to a particular historical context, which suggests, derivatively, that constitutional language and lacuna also derive their meaning, at least in part, from constitutional history. That is surely so; the question raised by Ackerman’s proposal, however, is not whether history is significant to constitutional interpretation, but whether we can tell—with anything close to certainty—nearly as much from political history as he supposes. Ackerman’s own treatment of the historical record suggests that the answer is no.
Ackerman focuses on three historical periods, the late eighteenth to early nineteenth century; the Civil War period; and the Roosevelt era.59 He argues that during each period constitutional politics displaced and predominated over normal politics and consequently altered the constitutional text. In scrutinizing the politics of the Roosevelt era, for example, Ackerman concludes that the voters were engaging in constitutional deliberation about the legitimacy of the welfare state. The Constitution, under Ackerman’s theory, may be amended even when there is no text to guide those who must interpret and enforce it.
The basic problem with postulating a theory whereby the political climate yields constitutional text is that reading electoral politics is only slightly less fatuous than reading tea leaves. Consider, for example, the folly of attempting to infer voter intent from the political climate of the Civil War era. In the election of 1860, four candidates had four different views on the two central questions of the day: slavery and union. The Constitutional Union party, a new name for the old Whigs, nominated John Bell on a platform that eulogized “the Constitution of the country, the union of the states, and the enforcement of the laws.”60 The Democratic party split. The northern Democrats nominated Stephen Douglas; the southern wing chose John Breckenridge. Douglas refused to run on a platform that explicitly protected slavery.61 Yet he did insist on the right of popular sovereignty (which he linked, not surprisingly, to the states), thereby undercutting the need for secession by providing a basis for the southern states to protect their own interests. That was not concession enough to mollify the southern Democrats, however, so Breckenridge ran on a platform that expressly demanded nothing less than federal protection of slavery.
Rounding out the field was the Republican candidate, Abraham Lincoln. Even Lincoln’s personal views are the subject of continuing controversy,62 but the ideology of the Republicans as a party is far more elusive, due primarily to the extraordinarily eclectic nature of the group. One extreme consisted of the Radical Republicans. They abhorred slavery, castigated the slave states in virulent language, and refused utterly to compromise or placate the southern interests merely for the sake of preserving the Union. Although it is true that during Reconstruction the Radicals became fervent Nationalists, it is also true that in 1860, rather ironically, the Radicals continued to exalt the power of the state governments over the federal. In uneasy alliance with the Radicals were the conservative Republicans. Led by Henry Clay and Daniel Webster, the conservatives, while not approving of slavery, were anxious to find a compromise rather than see the Union torn asunder. Maintaining the Union was paramount—more important to the conservatives than ending slavery.63
The party’s third strand, the Democratic-Republicans, represented defectors from the Democrats. This faction remained tethered to its Jacksonian roots and resisted the encroachment of federal power upon the states. The Democratic-Republican opposition to the Dred Scott decision, for instance, was based less on the merits of that decision than on what was perceived as the Court’s effort to foist its own (nationalistic) constitutional views on the states. To the Whigs among the Republicans, the Democratic-Republicans came too close to endorsing the Virginia and Kentucky Resolutions and the Doctrine of Nullification.64
Lincoln himself maintained both that slavery had to go and that the Union had to be preserved. Yet Lincoln’s nomination followed the rejection of William Seward, who had made the “irrepressible conflict” speech and whose outspoken opposition to slavery ensured a violent confrontation between North and South were he to be elected.65 How Lincoln would respond to secession was difficult to predict in advance of his election. Indeed, not until his inauguration speech, after he had been elected, did his rhetoric contain the ominous “clank of metal,” which boded disaster. Even then, however, Lincoln would not take the first step; it would be the South that would decide “the momentous issue of Civil War.”66
A vote in 1860 for Abe Lincoln was thus hardly a ringing endorsement for anything. In addition, the vote totals make it still more treacherous to attempt to infer what the voters were saying. Bell, the Unionist candidate, received fewer than 600,000 votes—less than one-third Lincoln’s total. Douglas, on the other hand, the vocal proponent of popular sovereignty (linked to the states), ran second, with 1.3 million votes, to Lincoln’s 1.8 million.67 Lincoln’s victory was made possible by his carrying the conservative border states (Indiana, Illinois, and Pennsylvania), which the 1856 Republican candidate, John Fremont, had lost to Buchanan. Popular sentiment in these pivotal swing states did strongly favor the Union, but inferring a national attitude from the views of voters in three states is dubious. Further, Lincoln won only 39 percent of the popular vote—a far cry from the supermajority demanded by Article V.68 At a minimum, then, it is safe to say that Lincoln did not command the broad, widespread popular assent at which Article V’s three-fourths requirement patently aims. It is equally safe to say that Lincoln stood for many things; precisely which particular things commanded endorsement from his discrete supporters is not knowable. Only Ackerman’s highly dubious notion that what the Republican party stood for (as a matter of constitutional theory) was clear to the voters69 allows him to make the wholly untenable suggestion that the Thirty-ninth Congress may properly “be viewed as a constitutional convention.”70
Attempting to infer the content of voters’ constitutional beliefs from the elections in the 1930s, which Ackerman’s theory also proposes, is equally hazardous. From Roosevelt’s election over Hoover in 1932, coupled with his resounding defeat of Alf Landon in 1936, Ackerman concludes that the voters first sanctioned the New Deal experiment, and then ratified the policies in 1936.71 It is, of course, relatively safe to say that the voters knew what they were voting for in 1932: Roosevelt favored national economic planning, federal control over public utilities, federal development of public power, and he was willing to endure budget deficits if needed to ameliorate human suffering.72 Hoover, in contrast, sanctioned austere restraint.73 Yet if we want citizens to ponder constitutional amendments dispassionately, as Ackerman does, if we want citizens to be motivated by national interests rather than self-interest (assuming there is a difference) when engaging in constitutional politics, as Ackerman does, then using 1932 is deeply problematic.
At least 11 million Americans were out of work at the time of the 1932 election, and manufacturing wages had declined nearly 60 percent between 1929 and 1933.74 A vote for Roosevelt in 1932 is therefore rather easy to regard as a vote for self-interest. Further, given the prevailing economic emergency in 1932, the most we can say, even if we can say with confidence that “the people” voted for “national” interests rather than “selfish” concerns, is that drastic measures were needed to combat an unprecedented catastrophe. That is quite different from saying that the voters wanted to institutionalize—to constitutionalize—those measures.
So what of the 1936 election: Does it not illustrate, as Ackerman intimates, ratification of the New Deal? Ackerman answers the question affirmatively, but his answer rests upon tenuous footing. For in addition to the fact that the economy was still ailing after four years of the Roosevelt experiment75—meaning that we must still ferret out self-interest from national interest motivations—the more serious difficulty is that Roosevelt’s opponent did not initially challenge the constitutionality of the New Deal legislation (which the Court persisted in striking down until 1937).76 Roosevelt countered attacks by critics who termed the New Deal legislation radical by describing it as moderate. Further, as Carl Degler has noted, “Virtually all of the truly experimental activities of the New Deal … were ultimately abandoned because of hostility from Congress—that is, from the immediate representatives of the people.”77 Voters may have felt comfortable with Roosevelt even if his programs were radical because of their confidence that Congress would reject anything too radical.
For Ackerman, the electorate signaled its assent to radical measures; in fact, it constitutionalized them. For Degler, the electorate would have rejected anything radical. In truth, the New Dealers lacked a coherent theory; they were purposefully ambiguous, intentionally understating their innovativeness. In light of this obfuscation—some intentional, some not—drawing conclusions about what the people said, about what they intended their vote to signify, is simply not possible.78
Ackerman’s theory is an example of bad history being used for questionable reasons.79 His description of the 1860s and 1930s is not disinterested, which is what one would hope for from a historian; it is instead patently instrumental, designed to buttress a particular political argument. Ironically, the method Ackerman utilizes is a two-edged sword: For just as history can give, so too can it take away. Arguably, having gone through twelve years of the Reagan-Bush era, Ackerman’s own generation of Americans has acted to make unconstitutional many restrictions on free-market capitalism. And as the problem of drugs becomes increasingly intractable, perhaps the people will do away with the Fourth Amendment, if this has not occurred already. The historical argument is not difficult to make.
The core requirement of Article V, which is the fundamental cause of the countermajoritarian difficulty, is the insistence upon supermajorities for purposes of amendment. Unless we reject this core, then it follows that sovereignty is indeed alienable. This conclusion may well be inconsistent with the descriptive theoretical content of sovereignty prior to the creation of the Constitution of the United States, but it is what we believe. And it is what our Constitution is. Indeed, the Federalists’ “greatest achievement” was in resolving the erstwhile “apparent paradox of sovereign states in a sovereign union.”80 This is a crucial point: The structure of the Constitution reflects the notion that sovereignty is alienable. This is what it means to say that certain rights are fundamental. Even from a purely originalist point of view, the framers themselves, by establishing the supermajority requirement, demonstrated their belief that sovereignty is alienable.81 The people may agree today that a mere majority tomorrow will lack the lawful power to alter the Constitution. When the people do this, they have alienated a portion of their sovereignty.
As noted earlier, that the Constitution can be altered in other ways, that it can be changed or disregarded even without acquiring a supermajority, says nothing constitutionally significant. Whereas statements about power are statements about physics, statements about rights are statements about philosophy—and hence about law. The Constitution does not speak to questions of physics. It does speak to issues of right, and it speaks clearly and emphatically when it says that a mere majority is not sufficient to amend the constitutional text, and when it establishes, through its complex structure, that a majority may (has the right to) bind itself in such a way that its will may not be exercised unless it becomes a supermajority.
The normative proposition that “the ‘power’ to amend the Constitution is not alienable” can be true for two, and only two, reasons. First, the Constitution itself might, implicitly or explicitly, recognize the truth of the proposition. Second, irrespective of the positive law, the proposition might be true as a principle of fundamental or natural law.82 Clearly the text of the Constitution does not explicitly recognize the truth of this proposition. This implies that insofar as Madison and the people of Virginia, Pennsylvania, and Maryland believed (prior to the ratification of the Constitution) in some amorphous “right” of the people to alter or abolish their governments, to the extent they believed in some right unconnected to those legal rights recognized by existing state constitutions or the Articles of Confederation—and to the extent Amar believes this as well—what was being expressed was a belief in natural law.83 Similarly, Amar does not argue that the truth of the proposition (that sovereignty is not alienable) is acknowledged explicitly or implicitly in the Constitution, either through penumbras or emanations or some other less manifest constitutional source. He simply asserts that it is true. Thus, only if one believes in natural law, or some other nonwritten law, is it accurate to say, as Amar does say, that the right to amend the Constitution is inalienable.84
This is not at all self-evident. In fact, it is seemingly belied by the final words of Article V, which render two issues—American participation in the international slave trade and the equality of states in the Senate—nonamendable.85 More generally, unless one believes in natural law, or believes that the Constitution embodies or recognizes it, the very idea of inalienability is problematic. Even for Locke, who did believe in natural law and who is still presumed to have had some influence on the framers, the agreement to enter into civil society involves an agreement to be bound by the majority.86 “Every man, by consenting with others to make one body politic under one government, puts himself under an obligation to every one of that society, to submit to the determination of the majority, and to be concluded by it.”87 It is true that Locke holds that no man can “subject himself to the arbitrary power of another,”88 but this does not preclude him from entering into civil society in the first place, which entails obeisance to the majority. This surrender of sovereignty must be understood as non-arbitrary, and Locke would permit it.89 In Locke’s theory, the people do retain the power to change a government even when their surrender of power has not been arbitrary,90 but this does not change the fact that they have the right—even the natural right—to submit to be governed by a majority. There is no reason, either in the text of Locke or in theory generally, to believe that it is necessarily arbitrary to agree to be governed by a supermajority rather than a mere majority. Hence, when Amar, like Madison, speaks of the right to alter one’s government irrespective of laws requiring supermajorities, it is more accurate to say that the people have the power to alter or abolish their governments. This is not equivalent to a legal right to do so.
Perhaps the people do have the power to alter their government; perhaps they do not. The answer lies in history and on the battlefield, not in constitutional explication. If, on the other hand, Amar supposes that the people retain the lawful power to alter their government outside of Article V, his point is quite specifically a point about rights91 and, thus, a point about constitutional explication. It bears, however, the heavy burden of overcoming specific textual language as well as our basic constitutional structure.
At the constitutional convention, the framers agreed that “provision ought to be made for the amendment of the [Constitution] whensoever it shall seem necessary.”92 The drafting committee initially proposed that Congress call a convention for the purpose of proposing amendments when requested to do so by two-thirds of the states. The concerns expressed about the committee’s proposal addressed the ease of the process. While some delegates expressed the view that the process seemed too easy, others, like Hamilton, seemed concerned that the Constitution would be too difficult to amend. Madison assuaged the concerns of both groups by proposing that no amendment become part of the Constitution until ratified by three-fourths of the states, and by further proposing that Congress itself be permitted to originate amendments upon a vote of two-thirds of both houses.93 Rutledge, from South Carolina, a slave state, proposed that the amendment provision preclude interference with the slave trade before 1808,94 which Article V reflects was agreed upon. Sherman’s concern that the big states would somehow find a way to abolish the smaller ones resulted in the provision in Article V that each state shall continue to have equal representation in the Senate.95
What is unmistakably clear is that the delegates to the convention consciously and intentionally approved an amendment process that would bar mere majorities from altering the Constitution. The participants in the process understood that they were drafting and agreeing to be bound by a document that could be changed only upon the garnering of a supermajority. Not a single delegate raised a philosophical objection to this proposal; not a single delegate asserted that this scheme was for any reason unenforceable or “illegal” in view of higher law. The understanding manifested by the framers, moreover, accords with our understanding today. We continue to believe in the truth of the principle embodied in the language of Article V.96 The durability of the Constitution derives in no small measure from the fact that Article V means what it says.
In their discussion of the amendment process, the delegates reflected a concern for another structural feature of the Constitution that Amar and Ackerman also slight: the states. Our government is not national; it is federal. States play critical theoretical and practical roles. Most fundamentally, despite Amar’s rejection of the idea of divided sovereignty,97 states are central components of the constitutional concept of sovereignty. The Supreme Court has recognized this structural point in a variety of contexts. In Oregon v. Mitchell,98 for example, the Court rejected the conclusion that Congress’s power was broad enough to “blot out all state power.” Neither the original Constitution nor the Civil War Amendments transformed the nature of our government into “a central government of unrestrained authority.”99
The Court could have easily quoted Madison on this point. Writing George Washington, Madison stated “that a consolidation of the whole into one simple republic would be as inexpedient as it is unattainable.” He described himself as having “sought for a middle ground, which may at once support a due supremacy of the national authority” while “not exclud[ing] the local authorities whenever they can be subordinately useful.”100 More publicly, in The Federalist, No. 39 he expressly rejected the structural conception of government that underlies Amar’s theory. The Constitution, Madison explained, is
neither wholly national nor wholly federal. Were it wholly national, the supreme and ultimate authority would reside in the majority of people of the Union; and this authority would be competent at all times, like that of a majority of every national society, to alter or abolish its established government. Were it wholly federal, on the other hand, the concurrence of each State in the Union would be essential to every alteration that would be binding on all. The mode provided by the [Constitution] is not founded on either of these principles. In requiring more than a majority, and particularly in computing the proportion by States, not by citizens, it departs from the national and advances toward the federal character; in rendering the concurrence of less than the whole number of States sufficient, it loses again the federal and partakes of the national character.101
This is extraordinary language, and in using it, Madison expressly dismissed the theories later adopted by both Amar and Ackerman. Similarly, in The Federalist No. 43, Madison reiterated the role of state governments in originating proposed amendments, and he observed that the guarantee of equal representation in the Senate was “probably” a concession to residual state sovereignty.102 Even Hamilton, especially in The Federalist No. 85, likewise recognized the residual sovereignty retained by the states, and he argued that it would make the national government figures especially responsive.103 He also observed the profound difference between drafting and ratifying the Constitution in the first instance and subsequently amending it (a difference that neither Ackerman nor Amar appreciates).
Finally, the anti-Federalists shared the Federalists’ conception of the structure of sovereignty. Said Patrick Henry: “The assent of the people in their collective capacity is not necessary to the formation of a Federal Government. The people have no right to enter into leagues, alliances, or confederations: They are not the proper agents for this purpose: States and sovereign powers are the only proper agents for this kind of Government.”104
In light of the constitutional structure of sovereignty, relying on a national majority to ratify proposed amendments rather than on majorities in discrete states is unconstitutional in the truest sense: It departs from the unmistakable language of the text as well as the concerns underlying the choice of such language. It is also inconsistent, not merely with the words of the Constitution, but with the constitutional structure of sovereignty and with those of our beliefs from which that structure emanates. Transforming the ratification process, as Amar does, from a state-based procedure to one based on a national majority is therefore more than merely at odds with the unambiguous language of the Constitution; it is radically at odds with the structure of our polity. Smaller governmental units do contain residual sovereignty distinct from that which animates the larger body. The Constitution also recognizes, structurally if not explicitly, this relationship. Article IV guarantees to the states a republican form of government, and the Tenth Amendment speaks of power retained by the states. This power is precisely a residue of sovereignty—a residue that, when it comes to amending the Constitution, is vested by Article V with immense significance. The suggestion that Article V is not the exclusive mode of amendment contradicts that bedrock principle of federalism and leads inexorably to the disappearance of states.105
Thought is false happiness: the idea
That merely by thinking one can,
Or may, penetrate, not may,
But can, that one is sure to be able—
That there lies at the end of thought
A foyer of the spirit in a landscape
Of the mind, in which we sit
And wear humanity’s bleak crown;
In which we read the critique of paradise
And say it is the work
Of a comedian, this critique;
In which we sit and breathe
An innocence of an absolute,
False happiness, since we know that we use
Only the eye as faculty, that the mind
Is the eye, and that this landscape of the mind
Is a landscape only of the eye; and that
We are ignorant men incapable
Of the least, minor, vital metaphor, content,
At last, there, when it turns out to be here.106
The voice of the people, it is sometimes said, is the voice of God. How better, then, to conclude this essay than by looking at one treatment of the classic paradox that man has free will and that all is foreseen by an omniscient God. Rabbi Akiba said, “Everything is foreseen [by God], and freedom of choice is given.”107 Akiba’s language is remarkable. So unperturbed, so unaffected, so untroubled was the great rabbi by the ostensible contradiction that Akiba did not even use the word but as his grammatical conjunction; he used and. For a man dedicated to law, as Akiba was, this repose is extraordinary, for the tension that did not disturb him pervades Torah and can deeply arouse our modern sensibilities.
“Scripture,” David Winston points out, “makes no attempt to harmonize the moral freedom of the individual with God’s effective action in all things, but remains content to affirm both.”108 Scripture is not troubled by the tension, nor are the faithful: those who believe. If one believes in an omnipotent, omniscient God, as the ancients did and some moderns do, then talk of human responsibility, of individual responsibility, is inapt. Yet if one cares about human morality, about individual ethics, as the talmudic rabbis did and some moderns do, then, it would seem, one must confront this paradox. As Akiba testifies, however, and as his life affirms, one need not resolve it; all one need do is reconcile oneself to living with it. This repose is difficult for the modern, frustrated by the coexistence of paradoxical beliefs; instead, one seeks reconciliation.
Paradoxes emerge from beliefs and meanings, not merely from words. Article V and the entire Constitution acquire meaning from our beliefs, which we translate only imperfectly into language. Through interpretation, we attempt to say what the words mean. The bounds of acceptable interpretation are circumscribed by context and by the fact that the Constitution is a legal document.109 Still, in interpreting we are driven to resolve. From the need to interpret there can be no escape. The current aim of interpretation, on the contrary, which is largely to resolve, can be altered. It should be.
Legal interpretation will benefit when the interpreters heed Wittgenstein’s exhortation that we look instead of think.110 When we look at the structure of the Constitution, and in particular at Article V, what we see is that our political essence reflects an individualist commitment to majoritarianism coupled, concomitantly, with a radical individualist commitment to the sanctity of certain principles. We believe in majority will, and we believe in the idea that certain ideals transcend the vicissitudes of majority will. We believe in the alienability of sovereignty, at some level, and we believe that no person can bind him or herself to slavery. We can see paradox, but no amount of thinking can resolve it. Constitutional theory will be better off when constitutional theorists learn, like Akiba, to live with the conflict.
My work on this project was supported by a grant from the University of Houston Law Foundation. This chapter is a substantially abridged (and slightly revised) version of my argument originally published as “When Words Mean What We Believe They Say: The Case of Article V,” Iowa Law Review 76 (1990): 1.
1By “ambiguous,” I do not mean that the text is without meaning, but that it is subject to several plausible meanings. See, e.g., Stanley Fish, Is There a Text in this Class? (Cambridge: Harvard University Press, 1980), pp. 97–111, 303–21; Willard Van Orman Quine, Word and Object (Cambridge: Technology Press of the Massachusetts Institute of Technology, 1960), pp. 125–56. This does not mean, of course, that any interpretation is possible, but simply that more than one is acceptable. Others have argued that although more than one interpretation may be acceptable, one will almost always be the best. See, e.g., Ronald Dworkin, “Law as Interpretation,” Texas Law Review 60 (1982): 527, 546.
2The meaning is clear at the core, at any rate. Debates may arise concerning meaning at the margins, or at what I prefer to call the periphery. The very idea of “easy cases” suggests that any number of texts mean precisely what they say. See generally Frederick Schauer, “Easy Cases,” Southern California Law Review 58 (1985): 399, 414–31 (clear “language is significantly important in producing easy cases”).
3The text of Article V is set out above at p. 5.
4For example, questions as to how long an amendment may languish without being ratified before it dies, questions as to the power of a convention called for the purpose of proposing specific amendments, and even questions as to the justiciability of these very issues. As Sanford Levinson explains in his Introduction, these extremely interesting and important questions are beyond the scope of this volume.
5Alexander Bickel, The Least Dangerous Branch (Indianopolis: Bobbs-Merrill, 1962).
6See, e.g., Bowers v. Hardwick, 478 U.S. 186, 191 (1985) (noting that the Court is “striving to assure itself and the public that announcing rights not readily identifiable in the Constitution’s text involves much more than the imposition of the Justices’ own choice of values on the States and the Federal Government”). The scholarly efforts that have addressed this issue are vast. See generally John Hart Ely, Democracy and Distrust (Cambridge: Harvard University Press, 1980); Paul Brest, “The Fundamental Rights Controversy: The Essential Contradictions of Normative Constitutional Scholarship,” Yale Law Journal 90 (1981): 1063.
7Brest, “The Fundamental Rights Controversy.” In contrast to Brest, I have argued that although the paradox is not resolvable, countermajoritarianism ought not to be regarded as a problem. Dow, “Hillel’s Dilemma and Wisdom: The Paradigmatic Instance of the Counter-Majoritarian Difficulty and the Judaic Resolution,” National Jewish Law Review 4 (1989): 59, 66; Dow, “Constitutional Midrash: The Rabbis’ Solution to Professor Bickel’s Problem,” Houston Law Review 29 (1992): 543.
8When I say “we believe in,” as I do throughout this essay, I am making an empirical assumption concerning the ideas that are prevalent in our culture: concerning, more specifically, the ideas that define our culture, that are its essence rather than merely its attributes. Insofar as these empirical assumptions are flawed or erroneous, my argument suffers accordingly.
9See, e.g., Akhil Reed Amar, “Philadelphia Revisited: Amending the Constitution Outside Article V,” University of Chicago Law Review (1988): 1043–44; Bruce Ackerman, “The Storrs Lectures: Discovering the Constitution,” Yale Law Journal 93 (1984): 1013, 1014–16; Ackerman, “Constitutional Politics/Constitutional Law,” Yale Law Journal 99 (1990): 453, 456; Ackerman, We the People: Foundations (Cambridge, Mass.: Harvard University Press, 1991).
10 The Federalist, No. 40 (J. Madison), ed. C. Rossiter (New York: New American Library, 1961), p. 253.
11Dennis Lloyd, Introduction to Jurisprudence, 3d ed. (London: Stevens, 1972), p. 152, n.1.
12See, e.g., Ernest Kantorowicz, The King’s Two Bodies: A Study in Medieval Political Theology (Princeton: Princeton University Press, 1957), pp. 43–45; Edmund Morgan, Inventing the People: The Rise of Popular Sovereignty in England and America (New York: Norton, 1988), p. 15.
13Morgan, Inventing the People, p. 15.
14This proposition can present a problem insofar as the people who constitute the sovereign might continue to believe in some type of natural law.
15See Morgan, Inventing the People; see also Thomas Pangle, The Spirit of Modern Republicanism (Chicago: University of Chicago Press, 1988), pp. 131–279 (emphasizing the Lockean orientation of framers and the applicability of this orientation to current political issues).
16See, e.g., James Buchanan and Gordon Tullock, The Calculus of Consent (Ann Arbor: University of Michigan Press, 1962); Armatya Sen, Collective Choice and Social Welfare (San Francisco: Holden-Day, 1970). The potential for agency abuse is Amar’s justification for the supermajority requirements on Congress and state legislatures (or conventions).
17See Quentin Skinner, The Foundations of Modern Political Thought (New York: Cambridge University Press, 1978), 1:113–14. More specifically, Skinner argues strongly for the influence of Calvinist thought on the development of notions of popular sovereignty (1:225–37). Skinner sees the roots of Calvinist ideology in Catholic scholasticism (pp. 321–22). Calvin understood that the doctrine he espoused had roots going back at least to Cicero (2:230–31). As I argue in the text, the roots could well be located in the Torah, and in the Talmudic development of its majority rule principle.
18See generally Donald Lutz, The Origins of American Constitutionalism (Baton Rouge: Louisiana State University Press, 1988), pp. 28, 60, 81, 102. Lutz defines popular sovereignty as “the idea that the community and its government originate in the consent of the people” (p. 81). Even as this belief was emerging, however, it was accompanied by the idea, which was well in place by the 1780s, that even the majority could be bound by fundamental law (p. 60).
19Indeed, Jefferson argued that majority will is an aspect of natural law. Thomas Jefferson, Notes on the State of Virginia, ed. W. Peden (Chapel Hill: University of North Carolina Press, 1954), pp. 124–25. Even so, the practical features of this principle are paramount, for any other focus proceeds at so high a level of abstraction as to be utterly unhelpful in resolving contemporary problems.
20B. Talmud, Baba Mezia 59b. For a detailed examination of the role of majority rule in Jewish society, see A. Schreiber, Jewish Law and Decision Making: A Study Through Time (Philadelphia: Temple University Press, 1979), pp. 316–27.
21Deuteronomy 6:17–18.
22Ibid. It would be possible, of course, to define “just” as coterminous with majority will: to say that something is just because it is supported by a majority. This is not the talmudic view.
23As Maimonides recognized, although talmudic law ordinarily follows the majority (of sages), there must be exceptions, as when the minority view is “better reasoned.” M. Maimonides, Commentary on the Mishnah: Tractate Sanhedrin, mishnah 6, trans. F. Rosner (1981), p. 11.
24The operative word, of course, is legitimate. A majority can often work its way, but this is simply a statement about raw power.
25Cf. H.L.A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961), pp. 64, 70–76 (arguing that some restrictions placed on the legislature narrow the scope of the power to amend). See generally Jon Elster, Ulysses and the Sirens: Studies in Rationality and Irrationality (New York: Cambridge University Press, 1979).
26Amar acknowledges this point. Amar, “Philadelphia Revisited,” p. 1065. This concession seems to me to underscore the implausibility of his thesis.
27Ibid., p. 1050. Here it is clear that Amar is, inappropriately, using sovereignty and the principle of majority rule interchangeably.
28Ibid., p. 1054 (footnote omitted).
29Ibid., p. 1055.
30See Dow, “Individuals, Governments, and Rights,” South Texas Law Review 30 (1989): 369, 372–73, n.21.
31Amar might be defining sovereignty as inalienable; that is, he might be making a statement of positive law. On the other hand, he might be making a philosophical point about natural law. His position is unclear. As a proposition of political philosophy, the claim traces its modern roots to Jean-Jacques Rousseau, The Social Contract, trans. D. Cress (Indianapolis: Hackett Pub. Co., 1983), bk. 2, chaps. 1–2. This view, however, is inextricably tied to Rousseau’s notion, which is not prevalent in American constitutionalism, that sovereignty is the exercise of the general will. Further, Rousseau additionally holds to the view—which is also quite alien to us—that the entire self can somehow be alienated to the general will (bk. 1, chaps. 6–7). For the influence (or, more properly, relative lack of influence) of Rousseau on the framers, see Lutz, The Origins of American Constitutionalism, pp. 139–49.
32Of course, this argument would suffer from all the problems attendant to intent-based theories generally. See, e.g., Paul Finkelman, “The Constitution and the Intentions of the Framers: The Limits of Historical Analysis,” University of Pittsburgh Law Review 50 (1989): 349; Daniel Farber, “The Originalism Debate: A Guide for the Perplexed,” Ohio State Law Review Journal 49 (1988): 1085.
33The primary source of the contemporaneous views of the framers is Max Farrand, ed., The Records of the Federal Convention of 1787 (New Haven: Yale University Press, 1937). Also useful is J. Elliot, ed., The Debates in the Several State Conventions on the Adoption of the Federal Constitution (Philadelphia, J. B. Lippincott, 1901). I review these materials in detail below, under “The Plain Meaning of Article V.”
34 Ackerman, “Storr’s Lectures,” pp. 1051–57.
35Not all elections, and not all presidential elections, are connected to proposed constitutional amendments. Typically, elections do not have constitutional significance. Such ordinary, routine politics Ackerman refers to as “normal” politics. Ibid., pp. 1022–23. Although Ackerman’s delineation of the structural amendment focuses on presidential elections, his theory does not dictate that structural amendments emerge exclusively from presidential politics. Presumably, congressional elections might also be a source of constitutional amendments. This would raise even more serious difficulties than those I enumerate in the text.
36Ackerman is also interested in the behavior and attitudes of elected representatives, namely congresspersons and senators, especially in Ackerman, “Constitutional Politics,” pp. 503–10. I do not think that the shift in focus from voters to elected officials affects the thrust of my critique. Moreover, it seems odd that newly elected or returned members of Congress could enact an “unconstitutional” statute after an election in which the voters, by participating in the very congressional elections that sent the representatives and senators to Washington, were engaging in “constitutional” politics. This paradox strikes me as terribly serious, but it is not the focus of this essay.
37Ackerman, “Storrs Lectures,” p. 1020.
38Ibid., pp. 1044, 1049–57.
39Ibid., pp. 1051–52.
40Ibid., p. 1052.
41See generally Herbert Broom, A Selection of Legal Maxims, ed. R. H. Kersey (London: Sweet and Maxwell Ltd., 1939), pp. 443–54.
42See Potomac Passengers Ass’n v. Chesapeake & Ohio Ry., 415 U.S. 453 (1974). See generally Note, “Intent, Clear Statements, and the Common Law: Statutory Interpretation in the Supreme Court,” Harvard Law Review 95 (1982): 892, 895, n.28, 899–900, nn. 58–62.
43William Van Alstyne, “A Critical Guide to Marbury v. Madison,” Duke Law Journal (1969): 1 (Article V must be understood to negate other conceivable modes of amendment); cf. Marbury, 5 U.S. (1 Cranch) 137, 174 (1803).
44As Madison put it: “The mode [of amendment] preferred by the convention seems to be stamped with every mark of propriety. It guards equally against that extreme facility, which would render the Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults.” The Federalist, No. 43 (Madison), p. 278. All of the citations are taken from the 1961 edition edited by Clinton Rossiter.
45Hamilton asserted that subsequent amendments would be easier to achieve than initial acceptance of the Constitution (though his argument in this regard appears fallacious since the Constitution itself provided that it would become effective upon consent by nine states), but he reiterated that states would be protected by virtue of the supermajority requirement. The Federalist, No. 85 (Hamilton), pp. 524–25.
46 The Federalist, No. 43 (Madison), pp. 278–79.
47The following list reflects the entirety of references in the records of the constitutional convention to the amendment process. Some of the references are to the formulation of Article V itself, while others appertain to discussion of amendment procedure in general. Farrand, Records, 1:22, 28, 117, 121–22, 126, 194, 202–3, 206, 227, 231, 237, 476, 478; 2:84, 87, 133, 136, 148, 152, 159, 174, 188, 461, 467, 555–59, 578, 602, 629–31, 634, 662; 3:120–21, 126, 357, 367, 400, 575; 4:49, 61, 93–103; Farrand, Records, supplement, ed. James Hutson (New Haven: Yale University Press, 1987), pp. 191–92, 270.
48I say “apparently” because it is notoriously difficult to ascertain the framers’ intentions from the extant records of the convention, particularly since these records depend almost entirely on Madison’s notes. In the context of Article V, the problem is especially acute. See Note, “Good Intentions, New Inventions, and Article V Constitutional Conventions,” Texas Law Review 58 (1979): 131, 149–56.
49Which is not to say that all legislative voting is thoughtful or deliberate.
50 On the subject of whether the word legislature in Article V can plausibly be construed to mean “the people,” see Note, “The Unconstitutionality of Voter Initiative Applications for Federal Constitutional Conventions,” Columbia Law Review 85 (1985): 1525 (arguing that it cannot).
51See ibid., p. 1525, n. 3.
52See Farrand, Records, supplement, p. 190.
53See, e.g., Max Farrand, The Framing of the Constitution of the United States (New Haven: Yale University Press, 1913), p. 190; Farrand, Records, 1:476, 478 (noting the framers’ concerns that factions based on the sizes and geographic locations of states would arise); Farrand, Records, 2:631 (noting the concerns of one member of the convention that the Constitution gave too much power to Congress).
54“Every constitution, then, and every law, naturally expires at the end of 19 years.” Letter from Jefferson to Madison, September 6, 1789, in Papers of Thomas Jefferson, ed. J. Boyd (Princeton: Princeton University Press, 1958), 5:395–96. This letter was not sent until January 9, 1790. See D. Malone, Jefferson and the Rights of Man (Boston: Little, Brown, 1951), p. 179.
55 See Dow, “Constitutional Midrash”; Dow, “Hillel’s Dilemma.” See generally Hart, The Concept of Law, pp. 92–107 (discussing primary and secondary rules as the foundation of a higher legal system); Hans Kelsen, General Theory of Law and State, trans. Anders Wedberg (1945), pp. 110–34 (discussing the role of norms in higher legal systems; in particular, Kelsen describes the relationship between basic norms and the Constitution); Hans Kelsen, Pure Theory of Law, trans. Max Knight (Berkeley: University of California Press, 1967), p. 198–201. Both Hart and Kelsen make clear that a (the) master rule can only be ontological, not deontological.
56Amar is by no means oblivious to this criticism, and I do not mean to imply that he has overlooked it. See Amar, “Philadelphia Revisited,” pp. 1096–1100.
57Ackerman might resist my assertion that one of his premises assumes the illegality of the Constitution. While he does argue that it must be seen as “illegal,” he adds that his “larger project” does not depend on this assumption that the convention’s arguments “would be rejected as clearly erroneous by any self-respecting court.” Ackerman, “Storrs Lectures,” p. 1017 n. 6 (emphasis in original). I confess that this argument loses me. The error strikes me as crucial. Without it, Ackerman is left with a naked normative argument, ungrounded in either text or constitutional history.
58To restate the point somewhat, the word illegal is a term of art. It does not mean illegitimate, or contrary to a philosophical tenet or principle. It means that there has been a particular judicial finding.
Amar’s most recent work, including his essay written for this volume, rejects Ackerman’s argument that the ratification process was “illegal.” Consideration of Amar’s new arguments is beyond the scope of this essay.
59See Ackerman, “Storrs Lectures,” pp. 1051–57.
60John Morton Blum et al., The National Experience, 4th ed. (New York: Harcourt Brace and World, 1977), 1:314. Unless otherwise indicated, the discussion immediately below is based on this reference (pp. 314–15).
61See David Potter, Division and the Stresses of Reunion (Glen View, Ill.: Scott, Foresman, 1973), p. 90.
62It has been said that more has been written about Lincoln than about any other human being, so it is almost pointless to pick out one or two works for citation. Nonetheless, for a good recent discussion, see James M. McPherson, Abraham Lincoln and the Second American Revolution (New York: Oxford University Press, 1991), pp. 3–63. Of course, delineation of Lincoln’s own views does not enable us to know with any precision how they were perceived and interpreted by his contemporaries—which is, ultimately, central to Ackerman’s theory.
63Blum, National Experience, 1:273–74.
64Ibid., 1:217. My discussion in this paragraph also draws on Allen Nevins, Ordeal of the Union, 2 vols. (New York: Scribner, 1947).
65Blum, National Experience, 1:314.
66Ibid., 1:318.
67Ibid., 1:315.
68Potter, Division and the Stresses of Reunion, pp. 82, 93.
69See ibid., pp. 1065–68.
70Ackerman, “Storrs Lectures,” p. 1065.
71Ibid., pp. 1051–57.
72Blum, National Experience, 2:314. My discussion of this era is also informed by Frank Freidel, Franklin Roosevelt: The Triumph (Boston: Little, Brown, 1956); Charles Kindeberger, The World in Depression (Berkeley: University of California Press, 1973); Arthur Schlesinger, The Politics of Upheaval (Boston: Houghton Mifflin, 1960); Howard Zinn, ed., New Deal Thought (Indianapolis: Bobbs-Merrill, 1966).
73Blum, National Experience, 2:630–31.
74Ibid., 2:618.
75Ibid., 2:643.
76 Ibid., 2:647.
77Carl Degler, “Introduction: What Was the New Deal?” in The New Deal, ed. C. Degler (Chicago: Quadrangle Books, 1970), p. 23.
78Of course, we can conclude that they intended to signify a preference for that candidate for whom they voted. I mean to suggest only that we can safely conclude no more.
79What I mean by questionable reasons is that one does not expect the historian’s account to be instrumental. See Thomas Haskell, “Objectivity Is Not Neutrality: Rhetoric vs. Practice in Novick’s That Noble Dream,” History and Theory 2 (1990): 129, 151. Moreover, even if Ackerman’s history were “good” history, in the sense of being a fair and accurate telling of the story, his theory would still suffer from many of the criticisms made of intent-based theories of constitutional interpretation.
80Peter Onuf, The Origins of the Federal Republic (Philadelphia: University of Pennsylvania Press, 1983), p. 198. See generally pp. 198–209.
81The assertion in the text is true even if Article V were not understood as the exclusive mode of amendment, for sovereignty would continue to be alienated on those occasions when Article V was utilized. It merits emphasizing at this point that my argument distinguishes conceptually between the theory of popular sovereignty and majoritarianism, for the core idea of Article V is that even when a group constituting a political majority has the power to effect change, it agrees not to—it binds itself to the status quo—unless and until it can become a supermajority.
82This proposition would be the same if one believes that the Constitution, either through the Ninth Amendment or generally, incorporates natural or fundamental law.
83See generally John Finnis, Natural Law and Natural Rights (New York: Oxford Press, 1980).
84Presumably it was Locke from whom emerged the idea of “right” to alter one’s government. See Oscar Handlin, “Who Read John Locke?” The American Scholar 58 (Fall 1989): 546. Handlin concludes, interestingly, that the framers, though they cited Locke when convenient, probably had not read his Second Treatise. They were apparently more familiar with Locke’s epistemology, as put forth in the Essay Concerning Human Understanding.
It might be the case that Amar’s argument concerning the inalienability of sovereignty is an asserted postulate of his overarching theory. Yet it does seem to me that Amar is making an independent normative claim. For discussions of sovereignty generally, see John Austin, The Province of Jurisprudence Determined, ed. H.L.A. Hart (New York Noonday Press, 1954), lecture 5 (1861–1863); Hart, The Concept of Law, pp. 49–76.
85Amar argues that even these issues would be amendable. Amar, “Philadelphia Revisited,” pp. 1067–71. Congress can, under Article V, prohibit participation in the international slave trade after 1808, but, until then, it was presumably forbidden to Congress to do so. See Douglas Linder, “What in the Constitution Cannot Be Amended?” Arizona Law Review 23 (1981): 717.
86J. Locke, Second Treatise, chap. 8.
87Ibid., par. 97.
88Ibid., chap. 11, par. 135 (emphasis added).
89Ibid., chap. 15, par. 172.
90Ibid., chap. 13, par. 149; see also chap. 19.
91Assuming that Amar’s point is a point about rights, the first question to ask is: Whence the source of this right? If the source, for Amar or for the early republicans, is natural law, then continued adherence to this notion is deeply problematic; if the source is the explicit text of the Constitution, then words (namely those of Article V) must be redefined. Only one source remains: The Constitution, by virtue of embodying republican principles, thereby embodies a certain right—the right of the people to alter their government whenever a majority so demands. This, ultimately, is the essence of Amar’s claim. The inescapable difficulty is that it disregards the language of the text, the apparent intent of the framers, the core of what we believe today, the benign policies underlying the text, and, most fundamentally, the structure of sovereignty.
92Elliot, The Debates, 1:170 (quoting a resolution unanimously adopted on July 23, 1787).
93Ibid., 5:531 (Mr. Gerry stated that by allowing two-thirds of the states to propose amendments the national government would be subverted to the will of the states).
94Ibid., 5:532.
95Ibid., 1:315–17, 5: 551.
96Ironically, Amar’s claim that sovereignty continues to reside in the people despite their efforts (despite their legal efforts) to alienate it is reminiscent of (even identical to) the argument used by Calhoun to construct his doctrine of nullification. See John C. Calhoun, A Discourse on the Constitution of the United States, a Disquisition on Government, ed. C. G. Post (New York: Liberal Arts Press, 1953), pp. xi–xii.
97See Amar, “Philadelphia Revisited,” p. 1063.
98400 U.S. 112 (1970).
99Ibid., p. 128. Of course, the Civil War Amendments did significantly affect our governmental structure. This is among Ackerman’s most compelling points.
100Letter from James Madison to George Washington, April 16, 1787, reprinted in Papers of James Madison, ed. Robert Rutland (Chicago: University of Chicago Press, 1975), 9:383. Madison wrote a similar letter to Edmund Randolph on April 8, 1787, reprinted in ibid., 9:368, 369.
101 The Federalist, No. 39 (Madison), p. 246.
102 The Federalist, No. 43 (Madison), p. 279.
103 The Federalist No. 85 (Hamilton), pp. 525–26.
104Ralph Ketcham, ed., The Anti-Federalist Papers and the Constitutional Convention Debates (New York: New American Press, 1986), p. 207 (speech of Patrick Henry, June 5, 1788).
105Whether the Amar and Ackerman proposals thus contradict the language of the Tenth Amendment itself is an issue I do not address.
106W. Stevens, “Crude Foyer,” in The Collected Poems of Wallace Stevens (New York: Vintage, 1982), p. 305.
107B. Talmud, Avot III:15 (in the prayer book, this text appears at III:19). The Hebrew is ha-kol tsa-fu v’hareshut netunah (author’s transliteration).
108David Winston, “Free Will,” in Contemporary Jewish Religious Thought, ed. Arthur Cohen and Paul Mendes-Flohr (New York: Scribner, 1987), pp. 269–70.
109See generally Richard Posner, Law and Literature: A Misunderstood Relation (Cambridge: Harvard University Press, 1988), pp. 209–68.
110Wittgenstein, Philosophical Investigations, trans. G. Anscombe, 3d ed. (Oxford: Basil Blackwell, 1968), secs. 134–37.