“Constitutional Tinkering”

How about the 11th, 18th, 22nd, and 27th Amendments, all of which I think are generally considered “conservative” in nature.
More generally, I perceive no “conservative” bias against “constitutional tinkering.”  In fact, it seems to me that it is implicit in conservative jurisprudence that conservatives should favor more constitutional amendments, simply because they are less enamored of judges engaging in de facto constitutional amendment by rewriting the Constitution.  As Scalia noted about the 19th Amendment, today it seems like such a charming relic that it was thought that in order to give women the right to vote

Re David’s post on Lithwick, conservatives, and “constitutional tinkering.”

First, I don’t think there is any reason to believe historically that conservatives or liberals are more or less prone to “conservative tinkering.”  How about the 11th, 18th, 22nd, and 27th Amendments, all of which I think are generally considered “conservative” in nature.  None are as broad as those Lithwick wants to highlight, but certainly I don’t think conservatives do, or should, eschew using the amendment process when appropriate.

More generally, I perceive no “conservative” bias against “constitutional tinkering.”  In fact, it seems to me that it is implicit in conservative jurisprudence that conservatives should favor more constitutional amendments, simply because they are less enamored of judges engaging in de facto constitutional amendment by rewriting the Constitution.

Justice Scalia notes (in a Matter of Interpretation if I recall correctly) that what is striking about the 19th Amendment is how quaint it seems that in order to give women the right to vote it was thought that you actually had to amend the Constitution in order to bring that result about.  Today, of course, someone would just file a lawsuit and have the judges order that result.

I actually believe that it is probably too difficult to amend the Constitution, which has led to greater “amendment” by judicial interpretation.  I think we’d probably be better off if it was marginally easier to formally amend the constitution through democratic processes then we’d have less pressure and excuse for judges to amend it through anti-democratic processes.  I wouldn’t want to allow amendment to be simply majoritarian processes, but perhaps something in between.

Not to mention that the Article V process itself seems fatally flawed in that it provides agenda control to precisely the parties (politicians and interest groups) who we actually want to constrain through constitutional processes.  Boudreaux and Pritchard’s article on amending the Constitution presents a pretty compelling case about the defects in the Article V architecture and the perverse results it produces.  Put simply, the amendment process has not operated as the Framers thought it would.  Conventions have proven to be a dead letter and Article V simply doesn’t work properly.

My research on the use of direct democracy processes in connection with my book on public choice and the law leads me to believe that on net, for example, initiative and referendum processes, if designed properly, are generally beneficial in constraining agency costs and interest-group influence in government.  We comprehensively survey the theoretical and empirical literature in the book, so before you say “Look at California” please be aware that, yes, I am well-aware of California and I have taken that into account in my conclusion (which rests on more than one data point) and in my observation that it has to be designed properly.

As to the constitutional repeal amendment that spawned this, again there is really nothing radical here.  To return to my hobby-horse briefly, prior to the 17th Amendment states had the ability to either propose or block legislation or constitutional amendments directly through their agents in the Senate.  The curiosity is the modern era where the states can be only reactive (by refusing to ratify amendments) rather than pro-active in being able to directly propose amendments.  So I think that something like the repeal amendment is much more consistent with the original balance on this point at least than that we have had for the past century.