Constitutional Amendments and the Constitutional Common Law

Abstract

Constitutions obsolesce rapidly, and must be updated over time to reflect changes in polity's circumstances and citizens' values. What institution or process should be entrusted with authority to do updating? If periodic wholesale replacement of constitution is infeasible, plausible choices are constitutional amendment process set out in Article V, flexible interpretation by judges under banner of constitutional common law, or some mix of two. Here I explore question by comparing relative merits of formal amendments and constitutional common law as means of constitutional updating. I attempt to dispel some prominent arguments that unjustifiably privilege constitutional common law over amendment process, and also attempt to sketch empirical conditions under which either process proves superior to other. My principal target is a standard academic view that I shall call the generic case against constitutional On this view, there are good general reasons to reject, or to indulge a presumption against, any proposed amendment. Among these reasons are following claims: it is bad to tamper with Constitution; Constitution should not be cluttered up with amendments that will trivialize its majesty; constitutional amendments are or polarizing; constitutional amendments may have bad unanticipated consequences; and constitutional amendments diminish coherence of constitutional text or of judicially-developed constitutional doctrine. Something like this view has become conventional wisdom in legal academy, following explicit arguments by Kathleen Sullivan and others. I argue that generic case against constitutional amendment fails. The generic case rests on a nirvana fallacy that implicitly contrasts a jaundiced view of amendment process with a romanticized view of common law constitutionalism. The real alternative to constitutional amendment is flexible judicial interpretation that updates Constitution over time - a practice that can also be seen as tampering with or trivializing Constitution, that is at least as polarizing or divisive as constitutional amendment, that equally risks bad unintended consequences, and so on. Once we have dispelled nirvana fallacy underlying generic case against amendment, constitutional updating is seen to pose a comparative institutional question. Constitutional amendment, on one hand, and constitutional common law, on other, are alternative institutional processes for managing inevitable updating of constitutional law over time. Under what circumstances might one process or other prove superior? What institutional considerations, or variables, determine their relative performance? I consider strengths and weaknesses of each process: relative to common-law constitutionalism, amendment process is less focused on facts of particular cases (both for good and ill); puts less weight on views of past judges (both for good and ill); allows for participation of decisionmakers from a broader range of professions and backgrounds (both for good and ill); produces more enduring constitutional settlements, albeit at higher initial cost; and trades benefits of flexibility for benefits of rigidity. Amendments show to best advantage, relative to common-law constitutionalism, where constitutional changes in question involve large value choices as opposed to technical improvements in law, where constitutional change must be systemic and simultaneous rather than piecemeal, and where irreversible change is more valuable than reversible change.