The very attempt to make perpetual
constitutions, is the assumption of a right to
controul the opinions of future generations; and
to legislate for those over whom we have as little
authority as we have over a nation in Asia.1
SOME scholarly essays attempt to describe events or introduce concepts, some test hypotheses against data or analyze doctrines, others define or defend norms. This chapter frets. It worries about stability and change, though more about change, in a constitutional democracy:2 what it was, what it is, and what it will become. I edge around the margins and below the surface of problems of constitutional change.3
“It’s a long, long while from May to September,” Jo Stafford used to wail back in the 1940s. For Americans it’s a longer time from 1787 to 1993 and much longer for the English from the Barons at Runnymede to the romantic romps of the current and not so merry wives of Windsor. Even many younger constitutional democracies, such as Austria, the Federal Republic of Germany, India, Ireland, Italy, and Japan, have aged to the point where few, if any, members of the founding generation are still politically active.
Furthermore, we cannot simply move, as some “originalists” would like to believe, from the moment of creation to the present—a fact that soon ensnares all efforts to retrieve the founding of a constitutional democracy, even those of Spain after the demise of fascism in the 1970s; Argentina, Brazil, Chile, and Uruguay after the collapse of military rule in the 1980s; and the nations of Eastern Europe after the self-destruction of Marxist hegemony in 1989. We cannot make that simple move because constitutions undergo more or less constant, if uneven, development, a lesson Pierre Trudeau and his Liberal party painfully relearned in the years after 1982. They wrote their vision of the good Canadian society into the parchment of the Constitution Act but failed to implant that vision into the political culture of Quebec.4
Most human beings, in and out of public office, display a solemn concern for that slice of time called the present. But, as is the concept of time itself, that of “now” is problematic. More than six decades ago, the historian Carl L. Becker warned readers about the speciousness of “the present.”5 Somewhat like Gertrude Stein’s Oakland, California, there’s no there there. At the very instant we speak the word now, it changes to the most recent of a vast multitude of “thens.”6 For Heraclitus’s assertion that we never bathe in the same river twice, a brash legal realist might substitute the contention that we live only fleetingly under the same constitution once. Such a claim may be exaggerated, but it contains more truth than would please citizens who prefer stasis.
“Continuity with the past,” Oliver Wendell Holmes once said, “is not a duty, it is only a necessity.”7 The “course of human events” is likely to bring hardships as well as benefits. A political system has to be able to survive bad times as well as good, though individual officials might not be so fortunate. It is one thing to vote a party or a president out of office because of severe economic distress; it is quite another to vote a constitution or even a constitutional text out of existence.
In order to survive, a system needs not only the support from its people that comes from gratification of immediate wants, but also a deeper attachment, what some political scientists call “diffuse support,”8 loyalty and perhaps affection that will be strong enough to sustain devotion during crises. To build up that sort of commitment, it is probable that a nation requires a sense of continuity, of communion with a hallowed past—“the American way of life,” “the glory of France,” or “the culture of Italy”—which provides a model of moral strength and patriotic vigor.
In at least two respects, the American constitutional text of 1787 was less radical than many Anti-Federalists charged. First, it was part of a tradition of social and political contracts, reaching back a century and a half to the Mayflower Compact of 1620.9 Second, the new Constitution rested on a younger but marked trend among colonists toward nation building. The Articles of Confederation had formalized a loose league born of common heritage and grievances, signified first by committees of correspondence, then by a Continental Congress, sanctified by the Declaration of Independence, and sealed by a victorious war of liberation. The new agreement of 1787–88 tried to restructure this embryonic political system by strengthening its center, but it was not something created out of nothing.
And the product of the Philadelphia convention itself soon became a revered institution. As early as 1791, Senator William Maclay was complaining that one might have thought that “neither Wood grew nor Water run in America, before the late happy Adoption of the New Constitution.”10 The reverence persists, not only for the document but also for its drafters. In fact, for some judges as well as many lesser folk, “the intent of the framers” or “original understanding” solves most problems of constitutional interpretation. But even for those of us who do not dance to these notes, the message that the Framers—especially James Madison—disapproved of a particular interpretation inflicts a serious if not mortal wound on that proposal.
Concerns for continuity may echo even from the mouths of revolutionaries. In 1861, for instance, when the Confederate States of America seceded from the United States, they adopted as their basic law the text of 1787 as amended, though with certain alterations to repair some of the “mistakes” the Committee on Style had made in 1787 and John Marshall had exacerbated.11 Thus Southerners could claim it was they who were conserving the real Constitution. “We are upholding the true doctrines of the Federal Constitution,” Jefferson Davis insisted. “We are conservative.”12 No less a historian than James B. McPherson believes that Davis and his confederates were correct.13 I think they were wrong; at most, they were upholding a peculiar blend of Anti-Federalist fear of centralized government and Federalist fear of democratic rule. The point, however, is not whether Southerners were right or wrong; rather it is that they tried to weave a conservative pattern into their revolution’s cloak and to do so appealed to the nation’s venerable covenant.
We can see similar phenomena in Europe. Since 1989 Poles have often spoken of the constitution of May 3, 1791, as if it had been morally, albeit not legally, operative during much of the intervening two centuries; and Hungarians have earnestly tried to link their new texts to the Golden Bull of 1222. Shortly after World War II, the Germans in the nascent Federal Republic had drawn their version of federalism from the Holy Roman Empire and their political philosophy from Immanuel Kant. These myths of continuity with a resplendent past lose little for being fictions. Indeed, it may be that one essential element of states-manship is inventing a glorious tradition to continue.14
My rather mundane claim so far has been that some elements of continuity are useful for, probably crucial to, political stability and therefore likely to be present in all systems that long survive. But some continuity does not imply a rigid state. Probably such a constitution would quickly be terminated with extreme prejudice. It was, after all, Edmund Burke, the prophet of conservatism, who asserted that “a state without the means of some change is without the means of its own conservation.”15 The chief justice of India put the point more mystically: “A Constitution is only permanent and not eternal.”16
In all modern political systems, much does and must remain constant, but much does and must change. Like law in Roscoe Pound’s jurisprudence, a constitution must be stable, yet it cannot stand still. Since the adoption of Canada’s Constitution Act, 1982, the basic text of every constitutional democracy establishes procedures for formal constitutional change. In 1943, Wendell Willkie went so far as to argue before the U.S. Supreme Court that “a person can be attached to the Constitution no matter how extensive the changes are that he desires, so long as he seeks to achieve his ends within the framework of Article V.”17
As will become evident, I think Willkie was wrong. I begin with the simplistic point that some change is not the same as any change. Acceptance of the necessity, even inevitability, of change tells us nothing about the political desirability, the procedural propriety, or the substantive legitimacy of any specific proposal for change. Difficult and thus interesting problems arise only when we discuss how a political system adopts amendments and the substance of particular alterations.
Procedurally, a constitutional democrat might postulate a hierarchy of change. For shifts likely to effect major, structural modifications, he or she might demand a formal constitutional amendment, meticulously following whatever institutional procedures text or tradition prescribes. William F. Harris II would go further and require meaningful popular participation in adopting such far-reaching innovations.18 For changes that partake more of clarification, interpretation by some authoritative body, such as a constitutional court, might suffice. For “changes” that fill in lacunae or carry out textual orders that permit some discretion, the practices that public officials adopt might be adequate.
The real world is not so neat, alas. Formal amendments may address important practical problems but without affecting the foundations of the political system. The Twentieth Amendment to the U.S. Constitution, for example, met a serious need when it reduced the time of presidential transitions from four months to two; but certainly that modification did not affect the structure, processes, or principles of the political system. Constitutional interpretation, on the other hand, may alter the polity quite radically. Cases such as Marbury v. Madison (1803), McCulloch v. Maryland (1819), Gibbons v. Ogden (1824), Brown v. Board of Education (1954), and even Dred Scott v. Sandford (1857) were far more important than many amendments in (re)shaping the American nation.
And such interpretations need not solely or even principally be judicial products. One might reasonably argue that Abraham Lincoln precipitated19 the most important restructuring in American constitutional history when he declared in 1861: “I hold that in contemplation of universal law, and of the Constitution, the Union of these States is perpetual.”20 He did not say “the Supreme Court has held” or “I infer from the Constitution and/or the Court’s interpretations”; rather Lincoln, a careful lawyer, said “I hold.”21 And he went on to argue that there were real limits to how far the Supreme Court’s constitutional interpretation bound the other branches of the national government.
For Germany, the Federal Republic’s government and the voters of East Germany, not the Bundesverfassungsgericht, decided to incorporate the East under Article 23 of the Basic Law, which provides for the admission of new länder. A more dramatic alternative, but one no less and perhaps more consonant with the text, was to invoke the procedures Article 146 had anticipated for reunification: a call for a convention from the two Germanys to draft a new constitutional text.22
More basically, constitutional interpretation is inherently creative, for at very least it attempts to make clear what was unclear, to provide one meaning where several were plausible, or to correct previous misunderstandings. The persistence of that creative element is cause enough for fretting, but it is a simply one of what Holmes called “can’t helps.” The world and people’s perceptions of their world change. As Noah Webster explained: “Unless the advocates for unalterable constitutions of government can prevent all changes in the wants, inclinations, the habits and the circumstances of the people, they will find it difficult, even with all their declarations of unalterable rights, to prevent changes in government. A paper declaration is a feeble barrier against the force of national habits and inclinations.”23
Framers of the West German and Japanese constitutional texts could not have predicted the economic miracles that would quickly restore their devastated nations any more than the people who drafted and ratified the American text of 1787 could have divined the economic and political evolution of their nation and the rest of the world. To achieve and maintain prosperity together with political stability, it has been necessary for leaders to reinvent their nations and to adapt and amend provisions of their constitutional texts.
These changes have not been linear, but they have seemed to move in one temporal direction, that is, from then to now and beyond. Some postmodernists, however, might brand such an account as “chronophonistic,” what Pauline Marie Rosenau defines as accepting “the modern assumption that time is chronological or linear.”24 These people might see the problem here as more complicated than my description indicates. Time, they might “reason,” if they would allow that term, can run in either direction.25 We all recall from our childhood that Merlin claimed to live backward and to remember the future. Stephen W. Hawking admits the possibility that “what we call real time is a figment of our imaginations.”26 Nevertheless, he argues, although “the laws of science do not distinguish between the forward and backward directions of time,” in fact: “at least three arrows of time … do distinguish the past from the future. They are the thermodynamic arrow, the direction of time in which disorder increases; the psychological arrow, the direction of time in which we remember the past and not the future; and the cosmological arrow, the direction of time in which the universe expands rather than contracts.”27
This reassurance that common sense had it right all the time allows most of us to sleep easier, though not without a tinge of regret that Merlin was putting Arthur (and us) on. Although we would acknowledge that the present and the future may change views we hold about the past, we nonetheless would reject the notion that the future can affect the past.
Still, one might wonder whether constitutional interpreters always and fully accept that proposition and might not, instead, be toying with conceptions of virtual reality. The American case of Bolling v. Sharpe (1954) provides a curious example.28 There the Supreme Court held that the Fifth Amendment, ratified in 1791, incorporated at least some of the equal protection clause of the Fourteenth Amendment, ratified in 1868.29 There are, of course, other possible interpretations of Bolling, but none quite so intriguing30 or, to those of us who wish we could go back and correct our errors, quite so appealing.
So far we have been discussing change within an existing constitutional democracy, shifts that may be quite important in and of themselves. Because of their effects on economic and social interests, these sorts of amendments inevitably breed sharp, even bitter, differences of opinion. At another level, prudential judgments about particular proposals for change within the existing paradigm will also divide proponents and opponents: What is the probability that a proposed amendment will accomplish its goal? Even if successful, will its costs outweigh its benefits for the nation as a whole?
These concerns are vexing. Political improvement is a constant need. “Surely,” Oliver Wendell Holmes once remarked, “it cannot show a lack of attachment to the principles of the Constitution that [a person] thinks it can be improved. I suppose that most intelligent people think that it might be.”31 But degeneration poses an equally constant peril. “Change,” as John Randolph of Roanoke liked to say, “is not reform.”32
Even assuming wise judgment on such issues, a much more basic question of change may arise: whether to abolish constitutional democracy. That sort of transformation would raise problems of an entirely different order—not only questions of gored oxen and sage policy but of principle and legitimacy as well. The very question of what sort of changes would fall within and outside the parameters of constitutional democracy is itself sometimes difficult, aggravated by the fact that no polity, however well intentioned, does more than approach that sort of political system. Polyarchy, Robert A. Dahl concedes,33 is about as close to representative democracy as nations actually get. One could say much the same about constitutional democracy: We may aspire to it but will never fully achieve it.
For the sake of coherence, I shall first try to illustrate, though I shall not be able to define in a complete way, what I mean by changes within and outside the paradigm of constitutional democracy. After that discussion, I shall move to an argument about limits on legitimate constitutional transformation. Legitimacy, as I use that term here, refers not to popular support but to grounding in the existing system’s fundamental normative principles.34
As already indicated, radical transformations need not be products of constitutional amendments; but, for the sake of space, I limit discussion to replacements by such formal means. I also leave aside questions of physical force. As unlikely as a truly popular revolution may be, it is a possibility. Some sort of coup in which the bulk of the people passively accepted the overthrow of the polity is more probable. Both would produce problems for constitutional theory as well as practical affairs, but not as stark as those my scenario would generate.
Amendments may trigger immense changes within a polity, shifting allocations of resources to favor some groups of private citizens and/or public officials while disadvantaging others. But amendments can have such effects without transforming a constitutional democracy into a different kind of political system. One immediately thinks of adopting a protective bill of rights that would include recognition of voting rights for people previously denied suffrage, spell out substantive restrictions on governmental authority, define some rights more broadly and perhaps others more narrowly than would current practice.35 In attempting to demarcate public authority, amendments might create or remove self-denying limitations on the use of armed forces, limit the consecutive number of terms of office elected officials could hold, set retirement ages for judges, require the government to balance its budget, or (re)allocate power among governmental agencies.
Other amendments could make more sweeping structural changes in the political system without abandoning constitutional democracy. A polity might, for example, switch from a presidential to a parliamentary form of government or adopt something in between, along the lines of the French model. So, too, a polity might embrace or abandon federalism. Because constitutional democracy has functioned quite well under each of these arrangements, the issues would be largely ones of prudence, of adapting particular arrangements to a people’s capacities and needs.36
Far different is a situation in which a nation faces proposals for systemic transformation. It is hardly inconceivable, for instance, that in time of dire economic distress a charismatic leader might appear who would promise prosperity if only citizens were willing to abolish constitutional democracy. “Grant me and my party full power to rule and we shall restore this nation to greatness” could be a persuasive appeal. “People who are hungry and out of a job,” as Franklin D. Roosevelt said, “are the stuff of which dictatorships are made.”37
Let us assume that the charismatic leader would persuade the people and/or their duly elected representatives to effect, with fastidious observance of every prescribed procedure for amendment, a constitutional transformation to a near-totalitarian dictatorship of some sort. Political participation might continue, but only of the kind and with the results the leader would deign to permit. All “rights” of individuals would tarnish into privileges. In sum, citizens would become denizens.
Such a change might well be effective in the sense of controlling the nation, and the system it produced might cope with economic distress so as to increase dramatically the level of prosperity while minimizing inequalities across all strata of society. Can the people agree to this transformation? The answer is obvious: Of course they can. Might may not make right, but it can establish national borders, create national institutions, and coerce much outward conformity. There are, however, other relevant questions: May a people who accepted constitutional democracy democratically or constitutionally authorize such a political transmutation? May the new system validly claim to draw its authority from the consent of the governed? My answer is no to these questions.
Because I have often if not well argued for limitations on valid constitutional change,38 I shall only summarize the principal contentions here. It should be obvious that these justifications sometimes overlap one another.39
A constitutional document may itself forbid some kinds of change. Insofar as that document is authoritative—itself a potentially serious problem, because no operative constitutional text is completely so—those terms, I would contend, bind both the constituted people and their public officials. For example, the American text’s outlawing amendments that would eliminate, without a state’s consent, “its equal Suffrage in the Senate” appears straightforward,40 and that document is generally authoritative.
Some constitutional texts impose broader restrictions. Article 79(3) of Basic Law of the Federal Republic of Germany forbids changes that would challenge the “dignity of man” or destroy the democratic and federal nature of the Bund. Article 139 of the Italian text reads: “The republican form of the State cannot be the subject of constitutional amendment.” Norway’s constitutional document imposes limitations that are perhaps more sweeping. After laying out procedures for amendment, Article 112 adds: “Such amendment must, however, never contradict the principles embodied in this Constitution, but merely relate to modifications of particular provisions which do not alter the spirit of this Constitution.”
Each of these provisions, including the relatively clear American ban, poses fascinating interpretive problems, even for people who abjure deconstructionism.41 In all constitutional democracies,42 however, constitutional exegesis is a flourishing industry. The existence of such problems complicates, but does not negate, the argument that, to the extent a text is authoritative, its terms shackle public and official discretion.
A generation ago, Herman Finer claimed that it was reasonable to “define a constitution as its process of amendment. For to amend is to deconstitute and reconstitute.”43 Finer was mistaken, I believe. He conflated two (or perhaps three) very different concepts. The word amend, which comes from the Latin emendere, means to correct or improve; amend does not mean “to deconstitute and reconstitute,” to replace one system with another or abandon its primary principles. Thus changes that would make a polity into another kind of political system would not be amendments at all, but revisions or transformations. In sum, valid amendments can operate only within the existing political system; they cannot deconstitute, reconstitute, or replace the polity. Most constitutional texts authorize only amendments, though a few others, like those of Spain and some American states, also provide for revision and the German Basic Law allows for its own replacement by a new text.44
In 1990, the Supreme Court of California drew these sorts of distinctions to strike down an amendment, adopted by referendum, that would have required state judges, when interpreting the state constitution, to follow the U.S. Supreme Court’s interpretations of similarly worded clauses in the national constitutional text. That change, the justices held, would so fundamentally transform California’s status as a member of a federal union as to effect a constitutional revision; and the text provided that “revisions” could be accomplished only by special conventions.45
The Bundesverfassungsgericht has offered two solutions to problems of incoherence that drafters’ carelessness, compromise, or deliberate inconsistency might leave in a constitutional text. First, the court has proposed reconciliation through structural interpretation: “Taken as a unit, a constitution reflects certain overarching principles and fundamental decisions to which individual provisions are subordinate.”47 Second,
that a constitutional provision itself may be null and void is not conceptually impossible just because it is part of the constitution. There are constitutional principles that are so fundamental and to such an extent an expression of a law that precedes even the constitution that they also bind the framer of the constitution, and other constitutional provisions that do not rank so high may be null and void, because they contravene those principles.48
Madison had made a pair of parallel points in The Federalist, No. 40, where he referred to “two rules of construction, dictated by plain reason, as well as founded on legal axioms.” The first is that “every part of the expression ought, if possible, to be allowed some meaning, and be made to conspire to some common end.” The second holds that “where the several parts cannot be made to coincide, … the less important should give way to the more important part; the means should be sacrificed to the end, rather than the end to the means.”
The Bundesverfassungsgericht’s assertions, if not Madison’s, bleed into questions about the limiting force of the normative theories on which a constitutional democracy is based. Amendments that would destroy or cripple the values of constitutional democracy, judges as well as academics have argued, are invalid.49 When such a polity consciously, seriously, and systematically violates its fundamental principles, it destroys its justification for existence, and public officials lose their authority to speak as agents of the people.
Again we face difficult prudential as well as normative problems. Because there is no single “democratic theory,” a nation would not necessarily be bound to any particular form of democracy; a polity could shift from one type to another, providing continued conformity to basic democratic principles.50 Nevertheless, the argument runs, a people could not legitimately use democratic processes to destroy the essence of democracy—the right of others, either of a current majority or minority or of a minority or majority of future generations,51 to meaningful participation in self-government.52
So, too, there is no single theory of constitutionalism. Moreover, the nature and extent of rights needed to protect fundamental values such as human dignity are problematic, for those rights often compete with one another. Therefore a people who accept constitutionalism might make and at other times remake agreements that fashion different tradeoffs among duties and among rights as well as between duties and rights. But, the argument goes, those tradeoffs must always be reasonably designed to protect the basic goals of constitutionalism. Any change that would transform the polity into a political system that was totalitarian, or even so authoritarian as not to allow a wide space for human freedom, would be illegitimate, no matter how pure the procedures and widespread the public support.
The reasoning behind this conclusion is simple, though not obvious. Because I have spelled it out elsewhere,53 I offer only a summary. Like democracy, constitutionalism rests on the notion of human worth. Thus a people’s freely given consent is a critical element of legitimacy for constitutional democracy.54 Consent does not, however, function as a magic wand that can cast a benevolent spell over all political arrangements. A system that denies human worth cannot claim consent as the foundation of its legitimacy, for what is worthless can confer nothing. The argument here parallels that of John Rawls regarding toleration of the intolerant:55 As a person cannot reasonably ask others to respect what he or she does not respect, so, too, a system that would treat men and women as mere “things” cannot logically (or justly) insist that others respect its hegemony over those “things” because those “things” have given the consent that only human beings, morally responsible and worthy of deep respect, could give.
These sorts of limitations usually exist outside the constitutional system. Occasionally, however, a text, as does Ireland’s, may make them part of the positive law of the land.56 The basic constitutional document of the Fifth Republic of France explicitly incorporates the Declaration of the Rights of Man of 1789; and so judges of the Conseil Constitutionnel, as well as scholars, are increasingly arguing for the constitutionalization of a broad version of natural rights.57 The constitutional text of the United States explicitly sets the establishment of justice as one of the polity’s goals. One might also logically infer that, insofar as American tradition implants the nation’s founding document, the Declaration of Independence, into the larger Constitution, natural rights impose binding standards on public officials.
Accordingly, Irish, French, and even American constitutional interpreters could rely heavily, perhaps completely, on positivistic reasoning for protection of “natural” rights and even for applying principles of natural law to judge the validity of constitutional changes. The argument would be spare: Whatever one’s opinion of the intellectual worth of natural law and natural rights, the text of the supreme law of the land recognizes and protects them. Thus officials who take seriously their oath to support that constitutional document are bound to try to give those norms practical effect.58
Interpreters who would rely on natural law or natural rights in the absence of firm textual grounding might deploy the classic natural-law theory that an unjust enactment, of whatever sort, is not law at all but a mere act of arbitrary will, incapable of imposing obligation. Additionally or alternatively, such interpreters might utilize Jefferson’s argument in the Declaration regarding the right to revolt against a government that fails its basic purpose of protecting its citizens’ natural rights.59
Rather than expand on these overlapping lines of reasoning, let me explore a few objections to them and several of the implications these arguments suggest.
Many constitutional democracies authorize declarations of “states of emergency” or “states of siege,” which suspend all or some constitutional processes and rights in order to cope with crises such as foreign invasion, rebellion, or terrorism.60 When such declarations are in effect, the political system operates, at best, as a substantially modified constitutional democracy and perhaps even as a dictatorship. Could such changes, even if specifically provided for by the constitutional text, be valid under the theory I have outlined?
The short answer is “only with great difficulty.” The practical problems are enormous. Emergencies sometimes do disrupt normal processes of governing and exercise of rights, but the cure may be as deadly as the crisis itself. Authority to assume emergency powers poses one set of problems, what range of powers that assumption invokes creates another. Allowing, for instance, the executive to rule by decree risks erosion, even destruction, of constitutional democracy, and a wide ambit or long life for such decrees heightens those dangers. There is a large and useful literature on these problems, which we need not review here.61 Let us, instead, focus on the issue of legitimate change when: (a) a crisis, in fact, threatens mortal harm to the polity; and (b) the institution invoking emergency power has moved with punctilious observance of the procedures the constitutional text prescribes.
If the normal rules and rights were modified or suspended only for the duration of a real emergency, the change would, by definition, not be permanent. The emergency might very well last a long time, but it may be the price of constitutional democracy over a much longer haul. John Maynard Keynes may have spoken eternal truth when he said that in the long run we are all dead; but, as long as we do live, it is likely to be in a world of restricted choice. And the list of options may be limited to (i) temporarily modified constitutional democracy or (ii) no constitutional democracy at all.62
The one important qualification I would add is that, although an emergency may allow government to operate outside many of the restrictions imposed by constitutional text, tradition, interpretation, and practice, government still must respect what John E. Finn calls “constitutive, or preconstitutional, principles, of which any constitutional text is but a specific and historically contingent articulation.”63 At the very least, emergent governmental action would have to respect the basic value of constitutional democracy, the dignity of human beings. How specific decisions would carry out that general precept presents, of course, an array of complex practical problems.
Closely related is the question of what happens when the state of emergency ends. Victory by the defenders of the constitutional order that preexisted the crisis does not necessarily imply a need to return to the status quo. The defenders may have the power to change the political system, as Union forces did after the American Civil War. For the immediate transition back to normalcy, the North restricted political participation by ex-Confederate officials and imposed rigorous conditions for readmission to the Union by those states that had supposedly never left in the first place. Much more significantly, the Radical Republicans pushed through the Thirteenth, Fourteenth, and Fifteenth Amendments, fundamentally changing the structure of the Union and creating what Justice Noah Swayne prematurely termed “a new Magna Charta.”64
Making such changes may be exceedingly prudent. As was the case in the United States, the text itself, authoritative interpretations of it, or the practices that surrounded it may have individually or collectively fed the roots of the crisis. On the other hand, circumstances might exist under which governing groups, either because of internal divisions or the slimness of their margin of victory, would be unable to effect any real changes. But the main questions over which this chapter frets involve but do not directly focus on either power or prudence. The central problem for this section is a much simpler one: Would most species of either constitutionalist or democratic theory require that the system return to the same constitutional form and text that were operative before the emergency? The answer must clearly be no. All that most combinations of constitutionalist and democratic theory would require is that the new or modified system continue to approach constitutional democracy, a qualification that imposes real restraints but still allows a wide range of institutional and procedural changes.65
If some kinds of constitutional transformations are invalid in a constitutional democracy, may such a polity legitimately forbid and punish advocacy of such proposals? This question grates against political liberalism; and although I am not a liberal by some definitions of that term, this issue troubles me as well. In responding, it helps to return to the distinction implicit in the last section, that between legitimate governmental action and wise governmental action.
The logic of this chapter’s argument marches toward the conclusion that neither mainstream democratic nor constitutionalist theories would forbid government’s trying to stifle proposals for constitutional change that would crush constitutional democracy. If both sets of theories disallow systemic transformations that would destroy the capacity of citizens either to participate in self-government or to be entitled to those substantive rights necessary to human dignity, neither theory could, with much consistency, forbid government to try to prevent such changes. “Justice,” John Rawls argued, “does not require that men must stand idly by while others destroy the basis of their existence.”66 Neither does constitutionalist or democratic theory require a polity’s quiet submission to its own extinction or its citizens’ meek acceptance of slavery.
I have spelled out the steps of such an argument elsewhere, with details about the concept of “militant democracy” and the ban by the Basic Law of the Federal Republic of Germany on parties that advocate destruction of constitutional democracy.67 The reasoning of the Canadian Supreme Court in The Queen v. Keegstra (1990), sustaining the federal law against hate speech,68 fits this argument much more closely than does that of Justice Antonin Scalia’s opinion for the U.S. Supreme Court in R.A.V. v. St. Paul (1992),69 striking down a somewhat similar ordinance.
That each of the theories would condemn destruction of constitutional democracy (or at least the segment of that political hybrid that its norms support) and allow government to try to prevent that destruction does not tell us much about how either would require the polity to cope with threats of systemic eradication. In many circumstances, tolerating such proposals might be the most effective defensive strategy. Justice Felix Frankfurter liked to remind his readers of the folly of equating constitutionality with wisdom.70 Many unwise, mischievous, or hurtful policies can pass muster under the terms of a constitutional text—and even be congruent with democratic and constitutionalist principles. Worse, one cannot make, in the abstract, many sure prudential judgments about the desirability, utility, or even feasibility of particular limitations on communication and association in a constitutional democracy.
My prejudices would run strongly against a restrictive governmental policy. Still, prudence and prejudice are only accidental companions. Jefferson could eloquently preach that those who would destroy the Union or “change its republican form” should “stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it.”71 But to generalize from the America of 1801 across time to the rest of the world would require a whistling walk among the tombstones of failed constitutional democracies. Their “truth” has not always triumphed in the free competition of a marketplace of ideas, perhaps because that forum has so seldom been open. After the end of the Cold War, we might all agree with Justice William O. Douglas’s claim in 1951 that American Communists were merely “miserable merchants of unwanted ideas.”72 On the other hand, we cannot so easily dismiss the threat the Nazis posed for Weimar Germany, Neo-Nazi and Stalinist parties posed for West German constitutional democracy in the 1950s, or the revised edition of the Communist party of the Soviet Union posed for the Russian Federal Republic in 1991, after the attempted coup, when President Boris Yeltsin banned it by decree, or in December 1992, when the new Russian constitutional court partly sustained that order.73
One can concede the reality and enormity of such dangers and still be uncomfortable about limiting freedom of political communication. First, a terrible temptation tugs at public officials to brand honest differences on policy within the four corners of constitutional democracy as threats to that political order, as the cases of the elder Adams, the older Richard Nixon, and their minions so vividly illustrate. Second, public officials are also apt, for good as well as evil motives, to exaggerate the magnitude of threats posed by those who would, even by peaceful means, attempt to overthrow constitutional democracy.
Third, curbing political expression or participation is likely to steepen the slope down which a polity may slide from the ideals of constitutional democracy. One need look no further than to the American experience from 1945 to 1955, when Joe McCarthy, Karl Mundt, James O. Eastland, and Francis Walter joined the younger Richard Nixon in scouring the country in search of Communists in government and private life. Those worthies discovered few if any threats to national security, but they generated a brood of their own: They curbed freedom of expression, twisted substantive policies in domestic and foreign affairs, and denigrated constitutionalist as well as democratic values.74
Suppose a polity were to decide that the potential costs of allowing government to outlaw advocacy of radically transformative systemic change so grossly outweighed the potential benefits as to justify inserting a clause in the constitutional text forbidding such action. Would both constitutionalist and democratic theory permit such a clause? I think the answer would be yes. I would, however, add two observations, neither of them original. First, it is difficult to institutionalize prudence. Second, the existence of a crystalline clause in the American constitutional text—“Congress shall make no law”—did not prevent the Sedition Act of 1798, the banning of abolitionist literature from the mails before the Civil War, Lincoln’s heavy-handed treatment of those who disagreed with his vision of the nature of the Union, the Sedition Act of 1917, the Great Red Scare that followed the First World War, or the longer and fiercer Red Scare that followed the Second World War.
A critic might respond to this chapter by saying that it relies on the contention, undefended above, that the people can bind themselves. But, the critic might continue, popular sovereignty denies that the people can bind themselves, for to be sovereign means to be subject to no higher authority. Sovereigns are legally, if not always physically, free to do what pleases them. Thus, as sovereigns, the people cannot make irrevocable commitments. We can only speak in a figurative sense of their “binding” themselves.75
This argument, I would respond, rests on a fiction and a confusion; furthermore, it proves too much. The fiction is the concept of “sovereignty,” popular or otherwise. In international relations, nation-states make grand claims to being free from the will of other nation-states; but often, perhaps typically, these assertions ring hollow. In domestic politics, governments fare somewhat better. Yet even at the height of the divine right of kings, the monarch was supposedly subject “to God and the law.” Government under law, if not under God, lives on as an ideal of constitutional democracy. A basic function of constitutionalism—and a source of tension with democratic theory and therefore within constitutional democracy—is to restrain government, even when it accurately reflects the popular will. Generations ago most students of American politics gave up trying to locate sovereignty within that system.
The critic’s confusion is to equate democracy with anarchy and so to prove too much: If the people cannot bind themselves, there can be neither a large-scale, peaceful, ordered society nor any constitution that is authoritative beyond declaring that the will of the people is the supreme law of the land. That “people” would always remain free to act as they wished at any particular moment. Mob rule would not merely be a possibility, it would be a legitimate option to which the mass of the people might resort whenever it pleased or profited them. To modify the extreme claims of popular sovereignty by admitting a people could bind themselves either to operate under a particular framework to allow determination of their will or to follow certain procedures in defining that will does not help the argument. Either the people can or they cannot bind themselves. If they cannot, they cannot bind themselves procedurally, and the legitimacy of mob rule persists. If they can bind themselves procedurally, there is no reason they cannot do so substantively as well and thus can set limits on their own authority both to alter the stakes of politics and to change the rules of the political game. The alternatives are either that the people can restrict their “sovereignty” or that anarchy is an authentic outcome for democracy.
Some people have lived and still live in anarchy, and all societies are vulnerable to slipping into it. The real question is whether humanity is doomed to that condition. If we could not bind ourselves, we would be so condemned. Thus it is not unreasonable to contend that men and women can fully bind themselves, at least conditionally; that is to say, they can fully bind themselves to act in certain specified ways, providing that their fellow citizens or public officials behave in other specified ways.
If the people can bind so themselves, then the rule of certain kinds of law becomes possible, law that relies on reason rather than force and respects particular substantive values along with decision-making procedures. Given human nature, mob rule always remains a danger possible; but if the people can and do bind themselves, it becomes an illegitimate option.
Do the democratic and constitutionalist strands of this chapter combine to beget a perverse paradox? Do they, in the name of keeping the possibility of political change open, eliminate the validity of systemic transformation? Does the logic of this essay require the conclusion that, once a people have adopted constitutional democracy, they as well as future generations are forever trapped in that sort of political system?
To some extent the answer must be yes, and that response provides additional cause for fretting.76 Let me back up a bit: We are intelligent men and women who think we can choose our form of government by “reflection and choice.” We arrive at constitutional democracy, we like to believe, because reason and experience convince us that it is the best form of government for achieving those values that Benjamin N. Cardozo summed up under the rubric of “ordered liberty.”77 Not only does reason lead us to try to create a constitutional democracy, but that sort of system depends heavily for its maintenance on reasoned argument rather than threats of violence. Thus it has a double appeal to people who value reason. Indeed, Noah Webster claimed that constitutional government created “the empire of reason.”
But does not the primacy of reason raises additional problems for my argument? Sotirios A. Barber, for example, maintains that a full commitment to reason allows only a provisional commitment to constitutional democracy because we must be open to rational persuasion about the moral necessity, or at least desirability, of systemic transformation of the polity.78 A plenary commitment to reason does not, however, permit every sort of systemic transformation, only to that which will, at least equally as well as constitutional democracy, protect the capacity of humans to reason about basic values and political change and an opportunity to carry out changes that reason indicates.
Thus, constitutional democracy would allow a transformation to another system that would enlarge reason’s empire or strengthen its reign. But a move from constitutional democracy to dictatorship, again except in true emergencies and then for only limited periods, would restrict reason’s ambit for all citizens except the ruler and his coterie; worse, such a system would not even push that elite to rule by reason.79
Dictatorial and would-be totalitarian systems aside, the question would remain about what other kinds of transformations might be validly open to a constitutional democracy. And here I would offer a simple, “I haven’t yet seen any such metamorphosis.” I do not, however, mean this response as more than a holding action: first, a commonsensical rejection of the various authoritarian models, theocratic and secular, the world has witnessed in this century; and, second, a less firm rejection of representative democracy unrestricted by constitutionalism.80
I do not imply that we have reached the end of history, not even the history of the state. Someday we may be able to imagine and then create a kind of political system that protects, better than does constitutional democracy, the values of human dignity and autonomy. Finality, as Disraeli once said, is not in the language of politics. My statement is only a begrudging admission that, unlike Merlin, I cannot remember the future, though I know it will be and sometimes fear what it will be.
I am indebted to James Sigmund of the Princeton class of 1995 and Adriana Alberti of the University of Bologna for research assistance; as usual, Rosemary Allen Little of the Firestone Library for help in navigating that labyrinth; Helen Wright of Princeton, the sharpest eyes in the East, for proofreading; and my colleague Andrew Koppelman for critically analyzing the manuscript. The William Nelson Cromwell Fund of Princeton and Boesky Family Fund of the Center of International Studies provided financial support. This chapter is part of a larger study of constitutionalism underwritten by the American Council of Learned Societies and the Ford Foundation.
1“Bills of Rights,” in Noah Webster, Collection of Essays and Fugitive Writings on Moral, Historical, Political and Literary Subjects (Boston: Thomas & Andrews, 1790), p. 47 (emphasis in original).
2I have insisted, ad nauseam, that the United States and most nations popularly called “democracies” are really constitutional democracies. Each is based on a pair of normative principles, constitutionalist and democratic theory, which advocate similar goals but also sometimes conflicting means. For a fuller discussion, see my “Constitutions, Constitutionalism, and Democracy,” in Douglas Greenberg, Stanley Katz, et al., eds., Constitutionalism and Democracy (New York: Oxford University Press, 1993).
3Because several times before, I have made arguments similar to some of those this chapter addresses, I repeat only enough of those arguments here for them to make sense. See “An Ordering of Constitutional Values,” Southern California Law Review 53 (1980): 703; “Slaughter-House, Civil Rights, and Limits on Constitutional Change,” American Journal of Jurisprudence 21 (1986): 1; “The Right to Privacy and Legitimate Constitutional Change,” in Shlomo Slonim, ed., The Constitutional Bases of Political and Social Change in the United States (New York: Praeger, 1990); “Consent and Constitutional Change,” in James O’Reilly, ed., Human Rights and Constitutional Law (Dublin: Round Hall Press, 1992); “Staggering toward the New Jerusalem of Constitutional Theory,” American Journal of Jurisprudence 37 (1992): 337; “Constitutions, Constitutionalism, and Democracy”; “Excluding Political Parties,” in Paul Kirchhof and Donald P. Kommers, eds., Germany and Its Basic Law (Baden-Baden: Nomos, 1993).
4For careful analyses of Canada’s constitutional agony during the decade following adoption of that act, see Peter H. Russell, Constitutional Odyssey (Toronto: University of Toronto Press, 1992); and R. Kent Weaver, ed., The Collapse of Canada? (Washington, D.C.: Brookings Institution, 1992). Kenneth McRoberts argues that Canada’s constitutional difficulties have worsened because Trudeau’s efforts to create an attachment to one nation largely succeeded among English-speaking citizens and failed among French-speaking citizens. McRoberts, English Canada and Quebec (North York, Ont.: Robarts Center for Canadian Studies, 1991).
5See especially Carl L. Becker, The Heavenly City of the Eighteenth Century Philosophers (New Haven: Yale University Press, 1932), chap. 4.
6On the other hand, some postmodernists have dubbed the present “our one and only eternity.” Agnes Heller and Ferenc Feher, The Post-Modern Condition (Cambridge, Eng.: Polity Press, 1988), pp. 3–4. Other postmodernists believe, Pauline Marie Rosenau says, that “we live in the present-as-text, in a fragmented ‘series of perpetual presents,’ where the future is only an ‘anticipated presence and the past a former presence.’ ” Rosenau, Post-Modernism and the Social Sciences (Princeton: Princeton University Press, 1992), p. 64 (citations omitted).
7Oliver W. Holmes, “Learning and Science,” in Collected Legal Papers (New York: Harcourt, Brace, 1920), p. 139.
8The seminal work on this problem was that of David Easton, especially A Systems Analysis of Political Life (New York: Wiley, 1965) and “A Re-Assessment of the Concept of Political Support,” British Journal of Political Science 5 (1975): 435. See also Dean Jaros and Robert Roper, “The United States Supreme Court: Myth, Diffuse Support, and Legitimation,” American Political Quarterly 8 (1980): 85. The late Joseph Tanenhaus and I tried to operationalize the distinction between “specific” and “diffuse” support: “Public Opinion and the United States Supreme Court,” Law and Society Review 2 (1968): 357; “Explaining Diffuse Support for the United States Supreme Court,” Notre Dame Law Review 49 (1974): 1037; “Patterns of Public Support for the Supreme Court,” Journal of Politics 43 (1981): 24; “Publicity, Public Opinion, and the Court,” Northwestern University Law Review 84 (1990): 985; and (with Daniel Kastner) Public Evaluations of Constitutional Courts: Alternative Explanations (Beverly Hills, Calif.: Sage, 1973).
9See Donald S. Lutz, The Origins of American Constitutionalism (Baton Rouge: Louisiana State University Press, 1988); and Lutz, “The Preamble to the Constitution of the United States,” 1 this Constitution 23 (Sept. 1983).
10Kenneth R. Bowling and Helen E. Veit, eds., The Diary of William Maclay and Other Notes on Senate Debates, March 4, 1789–March 3, 1791 (Baltimore: Johns Hopkins University Press, 1988), p. 399.
11See, for example, Marshall L. DeRosa, The Confederate Constitution of 1861 (Columbia: University of Missouri Press, 1991); Drew Gilpin Faust, The Creation of Confederate Nationalism (Baton Rouge: Louisiana State University Press, 1988); Emory M. Thomas, The Confederate Nation, 1861–65 (New York: Harper, 1979). See also Don E. Fehrenbacher, Constitutions and Constitutionalism in the Slaveholding South (Athens: University of Georgia Press, 1989).
12Quoted in James B. McPherson, “AnteBellum Southern Exceptionalism,” Civil War History 29 (1983): 230, 244.
13Ibid., p. 243:
When secessionists protested that they were acting to preserve traditional rights and values, they were correct. They fought to protect their constitutional liberties against the perceived Northern threat to overthrow them. The South’s concept of republicanism had not changed in three-quarters of a century; the North’s had. With complete sincerity the South fought to preserve its version of the republic of the founding father—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.… Therefore secession was a preemptive counterrevolution to prevent the Black Republican revolution from engulfing the South.
14There is a growing literature on political invention. See, for example, William Chapman, Inventing Japan (New York: Prentice Hall, 1992); Faust, The Creation of Confederate Nationalism; Eric F. Hobsbawn and Terence Ranger, eds., The Invention of Tradition (New York: Cambridge University Press, 1992); Edmund S. Morgan, Inventing the People (New York: Norton, 1988); Vladimir Tismaneau, Reinventing Politics: Eastern Europe from Stalin to Havel (New York: Free Press, 1992). In 1978 Edward W. Said angrily accused Western scholars of inventing and reinventing the Near East in terms that fed current national interests: Orientalism (New York: Pantheon, 1978).
15Edmund Burke, Reflections on the Revolution in France (1790; reprint, New York: Dutton, 1910), pp. 19–20.
16Golak Nath’s Case, [1967] A.I.R. 1643, 1670.
17Schneiderman v. United States, 320 U.S. 118 (1943). Displaying the prudence for which they are famous, the justices found no need “to consider the validity of this extreme position” (p. 140). As in so many things, I am indebted to Sanford Levinson for this example: Constitutional Faith (Princeton: Princeton University Press, 1988), p. 138.
18William F. Harris II, The Interpretable Constitution (Baltimore: Johns Hopkins University Press, 1993), chap. 4.
19I deliberately choose the term precipitated. In politics not only are most slopes slippery, but the law of unanticipated consequences works with vengeance. Seldom, if ever, does any single act create systemic change. What is far more probable is that an act will (help) trigger a chain reaction.
20“First Inaugural Address,” March 4, 1861, in Abraham Lincoln: Speeches and Writings, 1859–1865 (New York: Library of America, 1989), p. 217.
21It is likely that today most Americans who have thought about the matter, probably even most scholars, accept Lincoln’s dictum as positing another of those self-evident truths on which their polity rests. Like most human creations, however, nations and the constitutions that constitute them may decay. Even for constitutional democracies, fission is no less a political fact than is fusion, as the recent history of the Federal Republic of Czechs and Slovaks demonstrates (and possibly that of Canada will also). The Soviet Union and Yugoslavia show that nations trying to make a transition away from authoritarian rule may experience even more traumatic deconstruction. In the specific American case, the issue is certainly contestable, at least as a question of constitutional interpretation. A people who had solemnly constituted themselves into “a perpetual union” under the Articles of Confederation and then unconstituted themselves and proposed to reconstitute those members of the former “perpetual union” who wished to join “a more perfect union” would be hard put to explain why, later, members could not avail themselves of the same “right” to reconstitute an even more perfect union. See Mark E. Brandon’s chapter in this volume and his “Free in the World: American Slavery and Constitutional Failure” (Ph.D. diss., Princeton University, 1991).
22The State Treaty on Monetary, Economic, and Social Union (1990) agreed to several modifications of the Basic Law, including a change in Article 146. With the amendment within brackets, that article now reads: “This Basic Law [, which is valid for the entire German people following the achievement of the unity and freedom of Germany,] shall cease to be in force on the day on which a constitution adopted by a free decision of the [united] German people comes into force.” The State Treaty also committed Germany to consider constitutional changes within five years, when the question of reunification itself would no longer be on the agenda. Other changes in the constitutional text entailed a realignment of votes in the Bundesrat and revised Article 143 to allow the Eastern länder a delay of two to five years in adhering to some provisions, such as those relating to abortion, property, and Bund-land relations. For a comprehensive analysis of the process, see Peter E. Quindt, “The Constitutional Law of German Unification,” Maryland Law Review 50 (1991): 475; Donald P. Kommers, “The Basic Law and Reunification,” in Peter Merkl, ed., Germany at Forty-Five (New York: New York University Press: 1993); and Kommers, “The Basic Law Under Strain,” in Christopher Anderson et al., eds., Domestic Politics of German Unification (Boulder, Colo.: Lynne Reiner, 1993).
23“On Government” (1788), in Webster, Collection, p. 64. For a discussion of Webster’s constitutional theories, see Gordon S. Wood, The Creation of the American Republic, 1776–1787 (New York: Norton, 1969), especially pp. 372–83.
24Rosenau, Post-Modernism, p. xi. Rosenau, I should note, is a critic of postmodernism.
25See, for example, Martin Amis’s fascinating novel Time’s Arrow or The Nature of the Offence (New York: Harmony Books, 1991).
26Stephen W. Hawking, A Brief History of Time (New York: Bantam Books: 1988), p. 139.
27Ibid., p. 152.
28347 U.S. 497.
29Similarly, Hammer v. Dagenhart, 247 U.S. 251, 275 (1918), rewrote part of the history of the Bill of Rights. The First Congress had three times declined to include the words “expressly delegated” in what became the Tenth Amendment, but the Court in Hammer said that amendment reserved to the states and the people “the powers not expressly delegated to the National Government.” See also Hans v. Louisiana, 134 U.S. 1 (1890), correcting the oversight of the framers of the Eleventh Amendment in not excluding from federal jurisdiction suits commenced against a state by a citizen of that state.
30Especially since the Court had earlier several times held that the Fifth Amendment did not include “an equal protection component.” See, for example, Hirabayashi v. United States, 320 U.S. 81, 100 (1943): “The Fifth Amendment contains no equal protection clause and it restrains only such discriminatory legislation by Congress as amounts to a denial of due process.” Detroit Bank v. United States, 317 U.S. 329, 337 (1943): “Unlike the Fourteenth Amendment, the Fifth contains no equal protection clause and it provides no guaranty against discriminatory legislation by Congress.”
31United States v. Schwimmer, 279 U.S. 644, 654 (1929) (dissenting opinion).
32Quoted by Russell Kirk, John Randolph of Roanoke (Chicago: University of Chicago Press, 1951), p. 148. Randolph made this remark at Virginia’s constitutional convention of 1829, but the thought reverberates through his entire public life.
33 Robert A. Dahl, Polyarchy (New Haven: Yale University Press, 1971), especially p. 8; see also his Democracy and Its Critics (New Haven: Yale University Press, 1989), part 5.
34When we speak of consent as an, if not the, indicium of legitimacy, we are, of course, speaking from within a set of contested normative principles.
35Although many or even most thoughtful American constitutional democrats might oppose a constitutional change that would ease restrictions on the capacity of “public figures” to sue for libel or eliminate the exclusionary rule for illegally seized evidence, it would be difficult to make a persuasive argument that both changes would transform the United States from a constitutional democracy into some other kind of system.
36I do not mean to gloss over the risks such changes present. Every action (and perhaps inaction as well) is likely to spawn unforeseen effects. Dangers are likely to be acute both with amendments that seek systemic restructuring and with those that try to reallocate authority within existing structures. On such occasions, prudence would require painstaking analysis and sensitive judgment about the implications of the new order for constitutional democracy.
37Franklin D. Roosevelt, “Message to Congress on the State of the Union,” January 11, 1944; in Samuel I. Rosenman, ed., The Public Papers and Addresses of Franklin D. Roosevelt (New York: Harper & Bros., 1950), 13:41.
38See the essays cited in note 3, above.
39One interesting problem could not arise under the scenario I have sketched: an amendment being “adopted” by other procedures. Some committed constitutional democrats might argue that, as the history of the adoption of the constitutional text of 1787 and later of the “ratification” of the Fourteenth Amendment illustrate, this omission is serious, but not necessarily fatal. See, for example, Akhil Reed Amar, “Philadelphia Revisited: Amending the Constitution Outside Article V,” University of Chicago Law Review 55 (1988): 1043; Bruce Ackerman, “Discovering the Constitution,” Yale Law Journal 93 (1984): 1013, 1063–69; and Ackerman, “Constitutional Politics/Constitutional Law,” Yale Law Journal 99 (1989): 499–507. For the checkered history of the adoption of the Fourteenth Amendment, see, among others, Ferdinand F. Fernandez, “The Constitutionality of the Fourteenth Amendment,” Southern California Law Review 30 (1966): 378; Joseph James, “Is the Fourteenth Amendment Constitutional?” Social Science 50 (1975): 3; and Walter B. Suthon, “The Dubious Origin of the Fourteenth Amendment,” Tulane Law Review 28 (1958): 22. I shall try to address this problem in another place.
40The prohibition against amending the clause forbidding regulation of the importation of slaves self-destructed in 1808. One might also argue that the First Amendment prohibits its own repeal, at least via an amendment proposed by Congress. A constitutional amendment is by definition law and that amendment says, “Congress shall make no law …” For general agreement, see Amar, “Philadelphia Revisited.” The response that Congress does not alone enact constitutional amendments might be countered by pointing out that the president is part of the normal legislative process, so Congress does not, except when overriding a veto, “make law” by itself when passing a statute. The Indian Supreme Court used similar reasoning in Golak Nath’s Case, though the justices later reversed that interpretation in Kesavananda Bharati’s Case, [1973] S.C.R. 1 (supp.) (Ind.). My colleague Andrew Koppelman raises the question whether the “no-law” reasoning would hold in the United States for a constitutional amendment proposed by a national convention rather than by Congress.
41In the American case, the meaning of “equal suffrage” in the Senate may be both subtle and complex. Furthermore, a narrow positivist might propose eliminating equal suffrage in the Senate, of whatever kind, by amending the text to eliminate the prohibition in Article V. At that point, Congress might propose a new amendment to reapportion “suffrage” in the Senate.
42I want to avoid the question of whether such nations as New Zealand and the United Kingdom, which lack constitutional texts, are nevertheless constitutional democracies. If they are not, it is not simply because of this institutional omission. But, whatever they are, their officials often and publicly engage in constitutional interpretation. Works on the British constitution abound; for an insightful comparative study, see Gary J. Jacobsohn, Apple of Gold: Constitutionalism in Israel and the United States (Princeton: Princeton University Press, 1993).
43Herman Finer, The Theory and Practice of Modern Government, rev. ed. (New York: Holt, 1949), p. 127.
44Article 146. Note 22, above, quotes this article.
45Raven v. Deukemejian, 801 P.2d 1077 (1990). See Sanford Levinson’s essay in this volume, “How Many Times Has the U.S. Constitution Been Amended?” for further discussion of this case.
46To save space, I leave aside considerations of the structure of the political system, but I do, in the next section, “Prohibitions Imposed by the Normative Theory in the Constitution,” take up considerations imposed by a constitution’s normative theory. See William F. Harris II, “Bonding Word and Polity,” American Political Science Review 76 (1982): 34, and Harris, The Interpretable Constitution.
47The Southwest Case, 1 BVerfGE 14 (1951), trans. and ed. in Walter F. Murphy and Joseph Tanenhaus, Comparative Constitutional Law (New York: St. Martin’s Press, 1977), pp. 208ff.
48Ibid. The court was quoting with approval the Bavarian constitutional court.
49For Germany: In addition to the Southwest Case, see the dissenting opinion in the Privacy of Communications Case (1970), in Murphy and Tanenhaus, Comparative Constitutional law, p. 659. (The court divided 4–4, but its rules require a majority to invalidate a law, so the amendment remains part of the Basic Law.) For India: Golak Nath’s Case; Kesavananda Bharati’s Case, reversing the basis of Golak Nath’s holding that a constitutional amendment was invalid but reasserting that authority on different grounds; and Minerva Mills v. v. Union of India, [1980] S.C.R. 1789. For discussions of the instances in which the Indiana Supreme Court invalidated constitutional amendments, see Upendra Baxi, Courage, Craft, and Contention (Bombay: Tripathi, 1985); H. M. Seervai, Constitutional Law of India, 3d ed. (Bombay: Tripathi, 1984), especially 2:2635–2705; and Lloyd I. and Suzanne Hoeber Rudolph, In Pursuit of Lakshmi (Chicago: University of Chicago Press, 1987), chap. 3.
50For discussion of the basic institutional conditions necessary for democracy to operate, see Walter F. Murphy, James E. Fleming, Sotirios A. Barber, and William F. Harris II, American Constitutional Interpretation, 2d ed. (Westbury, N.Y.: Foundation, 1995), chap. 3; see also Dahl, Democracy and Its Critics, pp. 1–9, and Polyarchy, chap. 1.
51For discussions of the temporal dimension of democratic theory, see James G. March and Johan P. Olsen, Rediscovering Institutions (New York: Free Press, 1989), pp. 118, 146–47, and sources cited; and Dahl, Democracy and Its Critics, p. 71 and chaps. 12–13. As March and Olsen say,
Unless a democratic system can solve the problem of representing the future, changing interests of the unborn, it violates a rather fundamental underlying premise of democracy—that those who bear the costs of decision should have their interests adequately reflected in the choice.
If aggregative democracy cannot be extended to the unborn, or to the future (changed) preferences of current citizens, the criterion of political equality is compromised as a foundation of democracy. Aggregative democracy based on subjective political equality among current citizens appears to be only a crude approximation to political equality. It is conceivable that it is the best practical solution to a complicated problem. But the assertion of practicality is a claim that the flaws of such a system as an instrument of the ideals of democracy are less than the flaws of procedures that seek to provide some kind of basis for interpersonal and intertemporal comparisons; and such a claim is not self-evidently justified. (Pp. 146–47)
52The intergenerational argument is appealing, and, like others, I have sometimes adopted and adapted a version of it. See especially my “Excluding Political Parties.” But the argument also has weaknesses. If this generation should not limit the capacity of future generations to make basic political choices, by what authority can future generations restrict our choices about such matters? If our bodies must respect their ghosts, why do not their ghosts have the same obligation to respect our bodies? One response would reason that in “denying” us the right to destroy our right to make additional political choices—indeed, our right to have rights—future generations would be enlarging rather than restricting our range of choices. It is obvious, except perhaps to an extreme postmodernist, that even the specious present can inflict much more grievous harm on the future than the future can inflict on the past.
53 Murphy, “Consent and Constitutional Change.”
54How a people might give their consent and how both academics and public officials might recognize that consent present enormous problems, which I gleefully pass over.
55John Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971), pp. 216–21.
56Especially the Preamble and Articles 41–43; see McGee v. Attorney General, [1974] I.R. 284, in Murphy and Tanenhaus, Comparative Constitutional Law, p. 398; and In Re Art. 26 and the School Attendance Bill, 1942, [1943] I.R. 334, in ibid., p. 477.
57For analyses, see especially Alec Stone, The Birth of Judicial Politics in France (New York: Oxford University Press, 1992); Michel Troper, “The Interpretation of the Declaration of Human Rights by a Constitutional Judge,” Scandinavian Law Review (forthcoming); and George Vedel, “Interpretation of Old Constitutional Texts in Contemporary Societies,” Scandinavian Law Review (forthcoming).
58 For a different view, see Anthony J. Sebok, “Legal Positivism and the Growth of Twentieth Century American Jurisprudence” (Ph.D. diss., Princeton University, 1993), especially pp. 262ff.
59In the American case, a Jeffersonian argument need not be nontextual. Walter F. Berns has claimed that a right to return to “first principles”—certainly close to a right to revolution—is one of the unlisted rights the Ninth Amendment protects. “The Framers’ Judiciary and the Ninth Amendment,” the Fourth Thomas P. O’Neill, Jr. Symposium in American Politics, Boston College, 1988, pp. 40–47. This argument becomes stronger when one adds the final words of the Tenth Amendment about undelegated powers being reserved not merely to the states but, alternatively, “to the people.” See also Wayne D. Moore, “Constitutional Rights and Powers of the People” (Ph.D. diss., Princeton University, 1992). Cf. John Marshall’s oblique reference in McCulloch v. Maryland to the Declaration, the right of rebellion, and the adoption of the Constitution of 1787: “It has been said that the people had already surrendered all their powers to the state sovereignties, and had nothing more to give. But, surely, the question whether they may resume and modify the powers granted to government does not remain to be settled in this country” (4 Wheaton 316, 404 [1819]).
60For instance, the constitutional texts of the United States, Art. I, sec. 8, clause 15, sec. 9, clauses 1–2, and Art. IV, sec. 4; the Federal Republic of Germany, Arts. 12a, 53a, 80a, 81, 87a, 91, and 115a–5l; Ireland, Arts. 15.8, 24.1, and 28.1–3; and Italy, Art. 77. The Canadian Constitution Act of 1982 contains no explicit grant of emergency powers, but Article 33 allows Parliament to declare expressly that a particular statute shall stand despite its conflict with many of the enumerated rights of citizens (those recognized in Articles 2 and 7–15). Under the British North America Act of 1867, much of which remains in force as one of Canada’s constitutional documents, there would be little serious question about the government’s authority to suspend rights and utilize court-martials when it perceived an emergency.
61For bibliographies, see, for example, John E. Finn, Constitutions in Crisis (New York: Oxford University Press, 1991), and Murphy, Fleming, Barber, and Harris, American Constitutional Interpretation, chap. 19.
62The Canadian War Measures Act provides one model for control. In the event of “war, invasion, or insurrection,” the act authorizes the government to issue a proclamation suspending a wide range of civil liberties and to promulgate “orders and regulations” that have “the force of law.” The statute also stipulates that the prime minister shall “forthwith” lay such a proclamation before Parliament for debate. If that body does not give its approval, the proclamation and regulations issued under it cease to have legal force. Pierre Trudeau’s invocation of the act in 1970 to cope with terrorism by the Front de Libération du Quebec illustrate the operations of this statute. See the materials collected in Murphy and Tanenhaus, Comparative Constitutional Law, pp. 686–93.
63Finn, Constitutions in Crisis, p. 7.
64Slaughter-House Cases, 16 Wall. 36, 125 (1873)(dissenting opinion).
65I think my reasoning on this point is quite consonant with that of Finn, especially in chap. 1 of Constitutions in Crisis.
66Rawls, A Theory of Justice, p. 218.
67Murphy, “Excluding Political Parties.” Like the other contributors to Kirchhof and Kommers, Germany and Its Basic Law, I prepared my paper for an October 1989 conference that celebrated the fortieth anniversary of the Basic Law, shortly before the Wall came down. Were I to redo that essay now, almost four years later, I would, I hope, make a more nuanced argument, but would reiterate its essential reasoning.
68 [1990] 3 S.C. 697.
69112 S.C. 2538. The concurring opinions of Justices Byron R. White and John Paul Stevens come closer both to my reasoning and that of the Canadian Supreme Court.
70See, for example, his concurring opinion in Dennis v. United States, 341 U.S. 494, 553–56 (1951).
71“First Inaugural Address,” reprinted in Henry Steele Commager, ed., Documents of American History (New York: Crofts, 1938), p. 187.
72Dennis, v. United States, 341 U.S. 494, 589 (1951) (dissenting opinion).
73“Court Issues Compromise Ruling in CPSU Case,” Current Digest of the Soviet Press, no. 48 (1992): 11–13; “Constitution Watch: Russia,” East European Constitutional Review 1 (Summer 1992): 6–7; “Constitution Watch: Russia,” East European Constitutional Review 1 (Fall 1992): 9–10.
74The Federal Republic of Germany suffered from a similar pathology during the 1950s, though the imminence of a Soviet military threat and the ubiquity of East German agents within the West German government make fears for national security, though not necessarily the government’s specific policies, appear less foolish. For details, see Donald B. Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany (Durham, N.C.: Duke University Press, 1989), pp. 229–44, and the sources cited in my “Excluding Political Parties.”
75I may do Akhil Reed Amar an injustice, but I believe his argument in “Philadelphia Revisited,” which I admire in many respects (and which is also spelled out in his contribution to this volume), leads in this direction.
76I mention in passing two other such causes. First is the problem of gradual systemic transformation from constitutional democracy. The reasoning I have used here would apply to that situation, but the practical difficulties, including but not limited to those of recognition of the change, would be far more serious. Second is the problem, however open or rapid the attempt at transformation, of whose duty it is to stand up and shout foul. The short answer is “all citizens, in and out of public office.” A long answer would have to take into account the institutional structure and responsibilities of specific constitutional democracies.
77Palko v. Connecticut, 302 U.S. 319, 325 (1937).
78See Sotirios A. Barber, The Constitution of Judicial Power (Baltimore: Johns Hopkins University Press, 1993), pp. 60–61, 186–87, 232–34, and 265n. Barber made a parallel argument in On What the Constitution Means (Baltimore: Johns Hopkins University Press, 1984), pp. 49–51, 59–61.
79One could make a strong case that brutal dictators such as Adolf Hitler, Benito Mussolini, Josef Stalin, Gamal Abdel Nasser, Hafez al-Assad, Mu’ammar Qadafi, Saddam Hussein, “Poppa Doc” Duvalier, Mao Zedong, Augusto Pinochet, and Joseph Mobutu have been cunning, shrewd, and even quite adept at deploying some versions of rational choice. It would be fair, however, to classify only Pinochet among these as depending much on reason for his rule or even valuing that capacity in his subjects.
80A careful reader will note the lack of literary parallelism in this sentence. I deliberately did not say “models of representative democracy” because I am not sure any exist. Constitutionalists feel more secure with such institutional arrangements as judicial review, but I am not—at least not yet—willing to argue that a political culture cannot adequately protect constitutionalism’s values.