The Volokh Conspiracy

My final post about my book, Constitutional Cliffhangers, will deal with fixing and preventing constitutional cliffhangers.

One of my pet peeves is when an article identifies a potential constitutional problem and then concludes blithely that the best solution is just to amend the Constitution. Even passing a statute is tough. Heck, just getting Congress’s attention is hard. A few years ago, I wrote an article about a 50-square-mile swath of Idaho where (according to my theory) people can commit crimes with impunity. Orin posted something about it here and it went viral. A bestselling novel was even written about it. And yet, of the scores of members of Congress I wrote to trying to get them to close the loophole, only a couple even acknowledged my letters.

My book thus wrestles with the very real barriers to fixing the traps I identify, either before or after the nation steps in them. The final chapter of my book offers a lengthy analysis along these lines. I’m not going to say much about that in this post, other than to talk a bit about my conclusion that some cliffhangers are not really worth trying to fix in advance.

There are two kinds of cliffhangers: those in which the main problem is a bad result, and those in which the main problem is uncertainty. An example of the former is Chapter 1, where a sitting president might get prosecuted (with the attendant disruption) or might not (with the attendant injustice). The fact that, in the meantime, presidents and prosecutors go about their days unsure of the answer is much less of a problem. The chapters on self-pardons and late impeachment fit in this category as well. Legislation requires energized consensus, and there wouldn’t be one. Best, then, to just wait for an actual case to deliver a final resolution: either an acceptable result or an unacceptable one that motivates Congress to act.

When the problem is uncertainty, by contrast, the case for proactivity is stronger. In Chapters 3 and 4, constitutional uncertainty could rip the country in half, with two people claiming presidential power, issuing contradictory orders to the military, and purporting to fire cabinet members. The cost of resolving such cliffhangers “the hard way” is so high that it should soften opposition and make it easier — albeit still not easy — to reach a consensus and fix things ahead of time.

The main thing I want to talk about in this last post, though, is better drafting. There is no way to go back in time to 1787 and help the Framers write a better Succession Clause, or to 1947 to help the Twenty-Second Amendment’s drafters tighten up their wording, but Congress will probably draft procedural constitutional amendments in the future. I have some modest suggestions for drafting them better.

The rules and procedures surrounding the presidency are no place to be casual. These provisions should be hyper-precise, even if it means losing some of the public accessibility that is otherwise ideal for the Constitution’s language. Yesterday’s sad tale of the attempt to simplify the Twenty-Second Amendment showed that sacrificing exactitude for punchiness can cost you both.

The process of drafting technical amendments is an odd combination of painful slowness and reckless speed. It typically has taken years and multiple attempts to get a proposed constitutional amendment introduced, through committee in one house of Congress, onto the floor, approved by two-thirds, through committee in the other house, onto the floor there, and approved by two-thirds there. Each step presents an opportunity to change the text.

Especially at the final stages, though, there is a strong sense of impatience and urgency. Having gotten as far as they have, proponents are reluctant to allow anything that might stop the proposal’s forward progress. Moreover, having fought so much and for so long over the details, they distrust any attempt to unravel their craftsmanship.

To a large extent, they are right. Often, proposed last-minute changes represent arguments that were already considered at the committee level and either were shot down there or were the subject of a carefully wrought compromise. Even to the extent that some changes are new, any proposal that stops long enough to get pecked at by hundreds of individual members of Congress will have a hard time ever getting through. If the proposed change is picky and it concerns an unlikely series of events — the stuff of constitutional cliffhangers — it will be hard to defeat the floor leaders’ powerful natural desire to ignore it.

But once there is a consensus on an amendment’s concept, execution, and details, an argument that is solely about the text should not be so disfavored. To be sure, when somebody on the floor of the Senate identifies a phrase that could be drafted better and proposes redrafting it, that is inimical to the goal of final passage. Sending the language back through committee could take weeks or months — an unavailable luxury near the end of a congressional term. Drafting by the full Senate on the spot doesn’t work very well either. Still, sometimes a late change really is called for. Realistically, it’s the last chance; once Congress has approved a proposed amendment, it has no real opportunity to do any redrafting.

Congress thus needs a way to identify mistakes earlier in the process, and to fix late-discovered mistakes in a way that doesn’t unravel years of careful work. The key is to separate the process for agreeing on an amendment’s purpose from the process for finalizing the text. I have a modest suggestion: add two steps to the process, drawing upon wisdom in the general public and using modern collaborative technology to perform a sort of wiki government.

When people or committees have been working with a text for too long, it becomes difficult for them to see the problems with it. A fresh pair of eyes — or better yet, millions of fresh pairs — can be very valuable. Consider the analogy of the very successful use of open-source collaboration to write and debug software. Constitutional amendments can be complicated, but they are less so than software (or than statutes, where this technique has been tried in some places, with mixed results). Thus, there is good reason to think that with the right collaborative technology, interested members of the public would be very helpful at “debugging” and optimizing proposed constitutional amendments.

Once a congressional committee has reached a final, clear consensus on the concept, execution, and details of an amendment, it should give the text one more run-through, to make any improvements to the text that better vindicate that consensus. The committee could take, say, five days to optimize the text with the help of an online process through which interested members of the public could propose, discuss, and rate alternative phrasings.

Working together, the interested public would quickly discover previously unnoticed loopholes and pitfalls, identify the best ways to prevent them, and generally optimize the text. Textual optimization is not easy, but that’s precisely the point. Members of Congress and their staffs, even at their most able, intelligent, and hardworking, cannot match the “wisdom of crowds.”

The “crowd” might find bugs that affect the details in ways the committee had not clearly addressed, but the collaborative process could provide multiple optimized texts, each one reflecting a different set of substantive choices. The committee would still vote on the substantive choices; the public process would just flag issues and offer good language to deal with them. (The committee could get public input at an earlier stage, when it is discussing concept, execution, and details, but there is reason to doubt that this would work nearly as well.)

Once the proposal moves from committee to the full House or Senate, there might be new debate about the concept, execution, and details. Changes at this stage would require changes to the text that the first round of public input might not have covered. But at that point, a similar (and shorter) public process could help to smooth the text over again. Because the textual changes would be working toward a common goal, and because it would not entail rejecting, or tabling, or sending the item back to committee, the public process would not need to slow things down much at all.

Congress would still maintain its voting power, of course. The public would have influence, not direct authority. But public influence would be a welcome addition to the process, even aside from its effectiveness. The Constitution represents the voice of the People with a capital P, not just that of their representatives, in a way that is not the case in the less concise, less accessible world of statutes. When it comes to writing new words into the Constitution, this sort of public participation would have a nice symbolic value as well.

Vladimir Putin’s recent announcement that he intends to return to the presidency after the 2012 election has been rightly denounced as a deepening of authoritarianism in Russia. Having effectively repressed Russia’s opposition parties and media, Putin is now consolidating his position as a dictator. Barring some sort of sudden collapse of his regime (which is by no means impossible), he can now rule into the 2020s with little or no effective opposition.

It’s worth remembering that Putin had to leave the presidency in the first place because Russia’s 1993 Constitution bans presidents from serving more than two consecutive terms. Therefore, he turned the office over to his handpicked successor Dmitri Medvedev, who will now become prime minister after Putin’s nearly inevitable victory in the 2012 election, from which most opposition parties are effectively excluded from participating. Putin’s return to the presidency cuts off any hope that the Russian government will continue Medvedev’s moves towards modest political and economic liberalization.

The whole sorry situation highlights the wisdom of the US Constitution’s 22nd Amendment, which not only bars presidents from serving more than two consecutive terms, but also forbids two-term presidents from ever holding the office again in the future. That prevents American presidents from pulling off the trick that Putin used with Medvedev – leaving a loyal flunky in power for four years and then returning to office. It thereby makes it much harder for any one man to consolidate dictatorial dominance.

Obviously, there are many other differences between the US and Russian political systems that make authoritarianism a lesser danger in the former. Nonetheless, the power of the modern presidency is great enough that a popular leader who could serve indefinitely might consolidate enormous power and gradually undermine democracy. At the state level, term-limited governors who are allowed to return to office later have sometimes used relatives or friends as placeholders for a term until they can return to power. George Wallace, for example, used his wife Lurleen.There is no reason why a president could not adopt the same tactic.

In the Russian case, Medvedev might well have taken a more liberal and independent line if he knew that Putin could not come back. Even if Medvedev did not do so, other Russian political elites might have acted differently if not for the spectre of Putin’s return hanging over them. At the very least, it would have been harder for Putin – or anyone else – to concentrate power in the hands of one man and the narrow clique surrounding him. In theory, Putin might have been able to just ignore the Constitution in 2008 and stay in power anyway. But doing so would have undermined his legitimacy with the West, and probably at home as well. That’s why he chose to leave office in 2008 rather than stay on illegally.

Despite Putin’s imminent return to the presidency, his power is not completely secure. Even with government control of much of the media, public opinion is starting to turn against him and especially his government. If the price of oil falls, Russia’s oil-dependent economy will decline with it, and other elites might then find it in their interest to turn against the regime. Putin’s government is not nearly as brutal and oppressive as its Soviet predecessor, and there are still many active opposition groups who could take advantage of the government’s difficulties. For the time being, however, Putin has successfully consolidated his authoritarian regime. And his ability to return to the presidency after a four year hiatus is one of the reasons why.

This week, I have argued that the great overlooked question in constitutional law is the who question: who is bound by each clause and so who may violate it? These posts have attempted to answer this question for many of the most important clauses.  They have also attempted to sketch some of the implications of the answers.  Many more answers, and many more implications, may be found in my Stanford Law Review articles, The Subjects of the Constitution and The Objects of the Constitution.

Both the answers and the implications are contestable (and many of the comments have contested them!).  But the question, at least, has already started to take root (at least in the Third Circuit and the Seventh Circuit).  And it turns out that once you start asking, it is difficult to stop.

So, to the law students reading this blog, I leave this one parting thought.  When your professor tells you that “a statute violates the constitution” — either “facially” or “as-applied” — just ask him what exactly he means.  If the Constitution has been violated, then someone must have violated it, at some particular moment in time.  Ask your professor: who violated the Constitution and when? The discussion that follows may change the way that you think about constitutional law.

Many thanks to Eugene for the invitation, to Randy for the generous review, and to the Conspiracy for your gracious hospitality.

This week, I have argued that the great overlooked question in constitutional law is the who question: who has allegedly violated the Constitution? The question is important, first, for simple reasons of constitutional accountability: if you care about the Constitution, you should care about who is violating it.  But it is also important because it frames the organizing dichotomy of constitutional review.  The Constitution binds different governmental actors in different ways.  And judicial review of legislative action is fundamentally, structurally different from judicial review of executive action.  What the Court calls a “facial challenge” is actually a (broad and text-focused) challenge to legislative action.  What the Court calls an “as-applied” challenge is actually a (narrow and fact-focused) challenge to executive action.

So, it is essential to know which clauses of the Constitution bind which governmental actors.  Sometimes, happily, it is easy to tell, because some clauses are written in the active voice, with an explicit subject.  “Congress shall make no law … abridging the freedom of speech.”  “The Congress shall have power … To regulate Commerce … among the several States.”  Challenges under these provisions are challenges to legislative action.  They are inherently “facial” and do not turn at all upon specific facts that arise after the legislature made the law.  (Those facts might matter for preliminary questions, like standing, but they will not matter to the merits of the constitutional inquiry.)

Unfortunately, most clauses of the Bill of Rights are not so easy.  Most of them are written in the passive voice, inviting the question: by whom? Yesterday, I argued that most of these clauses bind the Executive (or Judicial) branch rather than Congress.  This explains the Court’s intuition that most constitutional challenges are properly fact-based, or “as-applied”.

The Fourteenth Amendment is more difficult still, but in a different way.  It is written in the active voice, with an express subject, but its subject is less specific than “Congress.”  The Fourteenth Amendment says: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

It is tempting, of course, to say that this provision binds all state actors, and so Fourteenth Amendment rights are rights against all of them.  But, unfortunately, the question is more complicated.  The Fourteenth Amendment is said to “incorporate” the Bill of Rights against the States.  But, as we have seen, the Bill of Rights itself protects rights against particular federal actors.  The subject of the First Amendment, for example, is “Congress.”  It is a prohibition on legislative action.  Does it follow, therefore, that the First Amendment as incorporated applies only to state legislatures?

Not necessarily.  In his masterpiece, The Bill of Rights: Creation and Reconstruction, Akhil Reed Amar explained how the rights in the Bill of Rights are refined as they are incorporated against the States.  Building on Amar’s brilliant work, my article explores perhaps the most important refinement of all — refinement of the subjects and objects of the Bill of Rights.  The rights as incorporated do not necessarily restrict the state analogues of the same federal actors.

The reason derives from the structural logic of the Constitution.  Because the Constitution created the federal government, it could be precisely calibrated to empower and restrain each of the three branches that it created.  The Bill of Rights provisions are restrictions on powers granted elsewhere in the document. They are, as Chief Justice Marshall says, “limitations of power granted in the instrument itself.”  The limitations are, thus, carefully calibrated to the power grants.

But the Constitution did not create the state governments, and it permits a wide variety of state governmental structures—requiring only that those structures be “Republican.”  So the Framers could not be certain precisely who, at the state level, would pose each sort of threat to liberty.  The Fourteenth Amendment restricts state governmental powers that are not to be found in the Constitution itself.  These provisions cut across state powers that may or may not be found in various state constitutions and may or may not vary from state to state. Here, the restrictions do not map onto grants of power to particular state officials, and so the restrictions are phrased generally: “No State shall.”

For this reason, incorporation of the Bill of Rights may work a refinement of the subjects and objects of the Bill of Rights.  Contra the conventional wisdom, different actors may be bound at the state level than at the federal level. For each privilege or immunity, it is essential to ask: privilege or immunity against whom? I venture some answers in The Objects of the Constitution.

David Gans of the Constitutional Accountability Center, the liberal organization that originated the “Whole Constitution Pledge” has a post commenting on various criticisms of the Pledge, including those by Eugene Volokh, Jonathan Adler, and myself:

To take back America’s charter from the Tea Party, Constitutional Progressives – an initiative launched by the Constitutional Accountability Center and supported by numerous other organizations concerned with protecting the constitutional rights of all Americans – have urged all Americans to pledge to support the whole Constitution….

We are pleased that, over the last week, a number of prominent and well-respected conservatives have taken the time to weigh in on the merits of the “Whole Constitution” pledge. For example, Ed Whalen and Eugene Volokh, have pointed out that calling for repeal of constitutional amendments is not proof of lack of fidelity to the Constitution, noting that Article V gives all Americans the right to call for the repeal of aspects of the Constitution they think are inconsistent with fundamental constitutional principles. Likewise, Ilya Somin has noted that, even after 27 Amendments enacted over 220 years, the long running struggle for a better, fairer, and just system of government still continues. Notably, and to their credit, neither Ed Whalen, Eugene Volokh, nor Ilya Somin show any interest in making the case that the Tea Party’s vision of the Constitution is the correct one, or that their call for repeal of numerous, deeply-rooted parts of our constitutional order should prevail. In fact, Ilya Somin agrees that Seventeenth Amendment – high on the Tea Party hit list – is an important and enduring part of our constitutional order.

These are all important and correct points. Article V is incredibly important to our constitutional story. Because the Framers recognized that the Constitution they created was not infallilble, generations of Americans have been able to change the Constitution in fundamental ways, ending slavery, guaranteeing equality, and ensuring a vibrant democracy that respects the right to vote free from discrimination. But none of these points, in fact, cut against the Pledge. On the contrary, with the Tea Party seizing on Article V to demand repeal of numerous Amendments ratified by the American people over the full sweep of our history, it is critical for the American people to understand the full arc of our constitutional story and to take our Constitution back.

I am pleased that CAC wants to continue this discussion, and of course we’re always happy to be called “prominent and well-respected.” I fear, however, that Gans’ defense of the Pledge fails and that he posits greater agreement between us than actually exists. If, as he now writes, Article V of the Constitution is “incredibly important” and the Constitution is – even now – “not infallible,” then the Pledge is wrong to call for support of “the whole Constitution” and to attack the Tea Party activists for having the temerity to want to change some parts of it. That was the main point of my original post criticizing the Pledge: that some parts of the present Constitution are indefensible (including by the standards of the political left) and others are at least reasonably debatable. We should not denounce the Tea Party – or anyone else – merely because they don’t support “the whole Constitution.”

In addition, I am perfectly willing to defend some important aspects of “the Tea Party’s vision of the Constitution.” As I explain in this article, I think the Tea Partiers are absolutely right to argue that the powers of the federal government should be far more limited than current Supreme Court jurisprudence allows. Indeed, I have been advocating stricter enforcement of constitutional limits on federal power since long before there was a Tea Party. I also agree with the view of many Tea Partiers that the Court has failed to provide anything remotely approaching adequate protection for constitutional property rights and economic liberties. Many other conservative and libertarian constitutional law scholars – both “prominent” and otherwise – hold similar views.

As Gans notes in regards to the effort to repeal the Seventeenth Amendment, I do not agree with the Tea Party on every constitutional issue. Indeed, it would be impossible for me to do so, since there is considerable internal disagreement in the movement. Not all Tea Partiers support repeal of the Seventeenth Amendment, for example, and it’s not even clear whether a majority do so. But I do think that the rise of a popular movement emphasizing stronger enforcement of constitutional limits on federal power is a positive development, even if I don’t agree with all of its specific proposals.

Finally, it’s worth noting that Gans is wrong to describe Jonathan and myself (and probably also Eugene) as “conservatives.” We are in fact libertarians. That distinction matters here because there are some important differences between libertarian and conservative views on constitutional reform. For example, few if any libertarians support efforts to repeal the birthright citizenship provision of the Fourteenth Amendment. The backing for that idea comes almost entirely from conservatives, because the latter tend to be more wary of immigration than libertarians are.

UPDATE: It’s not entirely clear from the context whether Gans meant to describe Jonathan Adler as a conservative in addition to Eugene and myself. If he did not, then I retract that part of my critique of his post.

UPDATE #2: Jonathan Adler has responded to the part of Gans’ post criticizing him here (you may need to scroll down to find his comment).

Co-bloggers Eugene Volokh and Jonathan Adler have made some powerful criticisms of the “Whole Constitution Pledge”put together by various liberal organizations. As Jonathan points out, there are some parts of the Constitution that most liberals prefer to underenforce, if not completely repudiate.

I would go further than that and note that at least a few parts of the Constitution are completely indefensible, including by the standards of modern liberals. For example, how many of the organizations behind the Whole Constitution Pledge support the provision in the Constitution that allows only native-born citizens to run for the presidency? I know I don’t – and it’s not because I have any desire to run for president myself. At best, this provision reflects unjustified suspicion of immigrants; at worst it’s rank bigotry. How about the rule under which the vice president (in his capacity as president of the Senate) gets to preside over his own impeachment trial? Does anyone, liberal or otherwise, believe that’s a good idea?

There are other parts of the Constitution, which though not obviously wrong, are at least open to serious criticism. For example, I think that it should be easier to break up excessively large and dysfunctional states, such as California. A number of liberal legal scholars, such as Sanford Levinson, believe it’s a bad idea to give some states fifty times greater representation per capita in the Senate than others. Are their ideas beyond the pale of reasonable discourse? Obviously not.

The Founding Fathers did a great job overall. But a few parts of their handiwork were flawed from the start, and some others that may have been defensible in 1787 or 1868 are no longer so today. For these reasons, I do not pledge to support the whole Constitution. Some parts of it are unworthy of support. I do urge judges and other government officials to impartially enforce all of its provisions for so long as they remain unamended. But that is not the same thing as endorsing their propriety.

Obviously, not all constitutional reform proposals are good ideas. For example, I am skeptical of calls by some on the right for the repeal of the 17th Amendment. But if you want to defend that Amendment against its critics, it’s not enough to endorse the “Whole Constitution” or to make general claims that “our Constitution has been improved by the Amendments adopted over the last 220 years,” as the Pledge puts it. You have to explain, as I tried to do, why repealing this particular amendment would do more harm than good.

Echoing Eugene’s comment below, I would feel better about the Constitutional Progressives’ “Whole Constitution Pledge” if I were confident that the drafters and signatories were truly pledging to support the whole Constitution, and not just those which can be used to advance a progressive political agenda through the courts.  Not only does the whole Constitution include Article V, as Eugene notes, but it also includes the Contracts Clause, the Privileges and Immunities Clause, the First Amendment’s Free Exercise Clause, the Second Amendment, the Fifth Amendment’s Takings Clause, and the Ninth and Tenth Amendments as well.  Given those spear-heading the pledge, including the Constitutional Accountability Center (the successor organization to Community Rights Counsel), the Center for American Progress, the People for the American Way Foundation, and Senator John Kerry, I have my doubts.

Here’s the Constitutional Progressives’ “Whole Constitution Pledge” that various liberal groups are asking people to sign:

The Whole Constitution Pledge

Through the Constitution, “We the People” created the most enduring government charter in world history.

Building on the achievements of the Founding generation, successive generations of Americans have created a “more perfect union” through constitutional Amendments. These Amendments have improved our Constitution by ending slavery, enshrining guarantees of equality and citizenship, expanding the right to vote, and ensuring that the national government has the power and resources necessary to protect the nation, address national challenges and secure civil rights.

Some have advocated repeal of Amendments, including the 14th Amendment, the 16th Amendment, and the 17th Amendment, that make our Constitution better and this country great. Some have even failed to heed the lessons of the Civil War and the Civil Rights Movement and have advocated a return to ideas of secession and nullification.

I believe that our Constitution has been improved by the Amendments adopted over the last 220 years.

I pledge to support the whole Constitution.

But, as Ed Whelan points out, Article V is part of the “whole Constitution,” too — indeed, the part that helped bring about the Amendments that the pledge authors so praise. So I should say that I pledge to support the whole Constitution, including the provision that allows repeal of those provisions that were enacted by yesterday’s Americans but that today’s Americans choose to revise through the constitutionally prescribed means. As to which particular provisions should be kept and which should be repealed, I make no pledges.

Co-blogger Eugene Volokh recently cited the 1916 case of Butler v. Perry as an example of the reasoning that allows the Supreme Court to hold that some forms of forced labor do not violate the Thirteenth Amendment’s ban on involuntary servitude. Butler upheld a Florida law that required all adult males between the ages of 21 and 45 to pay a small fine or work on road repair for six days per year.

It so happens that, in 2007, I wrote a detailed critique of Butler as part of a series of posts explaining why mandatory national service would violate the Thirteenth Amendment. Here is an excerpt:

Justice McReynolds’ opinion for the Court… [argues that] “the term ‘involuntary servitude’ was intended to cover those forms of compulsory labor akin to African slavery which, in practical operation, would tend to produce like undesirable results. It introduced no novel doctrine with respect of services always treated as exceptional, and certainly was not intended to interdict enforcement of those duties which individuals owe to the state.”

There are several problems with this formulation. First and most important, if the term “involuntary servitude” really does not apply to traditional “duties” to the state, there would have been no need for the Amendment’s exception for the use of forced labor as punishment for a crime. As I explained more fully in this post, using forced labor to punish criminals was a longstanding tradition, and was surely not considered “akin to African slavery.” Second, McReynolds’ argument elides the hard question of determining what evils really were “akin to African slavery” and likely to “produce like undesirable results.” The “free labor” ideology underpinning the Thirteenth Amendment was based on a broad opposition to all forms of forced labor as inimical to a free society, not merely those based on racial categories or those that involved lifelong slavery…. Finally, McReynolds’ argument seems to elevate the supposed subjective intentions of the framers over the plain text of the Amendment, which is clearly not limited merely to those forms of “involuntary servitude” that are “akin to African slavery” but instead bans all such servitude with the sole exception of forced labor used to punish convicted criminals…..

McReynolds’ historical argument ignores the possibility that antebellum road service laws were enacted at a time before the rise of the antislavery “free labor” ideology that underpinned the Thirteenth Amendment. The latter involved a much broader opposition to forced labor than the relatively narrow opposition to slavery that probably underpinned the antislavery provisions in the 1787 Northwest Ordinance and other much earlier laws that McReynolds cited. If so, the original intent behind the 1865 Thirteenth Amendment may have been broader than that underpinning earlier laws using similar language. Moreover, if the antebellum road work laws had allowed citizens to pay a small tax in lieu of working (as the Florida law did), they may not have been viewed as true forced labor measures and thus were considered to be “involuntary servitude” for that reason…..

In this post in the same series, I explained why mandatory jury service (which I am no fan of) is still constitutionally permissible and indeed possibly constitutionally required.

So explains my Independence Institute colleague Rob Natelson, on his Our American Constitution blog. Forty-eight of the 55 delegates had instructions which allowed them to go beyond amending the Articles of Confederation.

Rob’s research into early American history has found that constitutional conventions (for a new constitution, or to amending an existing document) had well-established procedures by the time of the Framing. Click here for post that will provide a summary, and to lead to Rob’s extensive analysis of original sources. As Rob explains, constitutional conventions for a balanced budget, or other salutary (in my view) purposes have been blocked in part by fears raised by the John Birch Society that a new convention would run away like the Philadelphia Convention did, or that the procedures of a new convention are completely unclear. To the contrary, the procedures are clear, and neither the Philadelphia Convention nor its early American analogues exceeded their mandate.

Co-blogger Randy Barnett’s proposed Repeal Amendment has generated a great deal of controversy. The amendment would give a two thirds majority of the states the power to repeal any federal law or regulation. The idea has now been endorsed by a number of congressional Republicans, including soon-to-be House Majority Leader Eric Cantor.

Randy argues that the amendment could play a significant role in “deterring even further expansions of federal power.” Critics such as Washington Post columnist Dana Milbank claim that it would seriously undermine the Constitution or even “destroy” it .

I think that both sides’ claims are overstated. If enacted, the Repeal Amendment would have only minor effects because mobilizing 34 states (the number needed for a two-thirds majority) to oppose any congressional enactment is extremely difficult. Proponents of repeal would have to win not just 34 votes, but 67 or 68, since every state but Nebraska has a bicameral legislature. In some cases, the party that controls the state senate is not the same as the one that controls the lower house, which makes it difficult to get both to vote for the same repeal proposal.

As Randy himself points out, “[g]etting two-thirds of state legislatures to agree on overturning a federal law will not be easy and will only happen if a law is highly unpopular.” If it were that unpopular, it seems unlikely that the law would be enacted by both houses of Congress and the president in the first place. In practice, therefore, the Amendment’s effects would largely be limited to repealing a few old laws that no longer have significant political support. And even in those cases, assembling the required two-thirds majority will be difficult.

Moreover, as I noted in a 2009 post on one of Randy’s earlier amendment proposals, state governments have only very limited interest in combating expansions of federal power and often actually benefit from it. This makes it even more difficult to mobilize 34 states to repeal any federal law that has any real significance. It also dampens hopes that the Amendment would result in vigorous state resistance to future expansions of federal power.

These very same points also undercut opponents’ claims that the Amendment would severely undermine the Constitution or somehow give states the power to “nullify” federal laws at will. In reality, they would only be able to reverse laws that were highly unpopular and have little political support. Milbank and others are also off-base in suggesting that the Amendment somehow disrespects the Founding Fathers or upsets their design. The Amendment is in fact an extremely modest response to the extent to which federal power has grown far beyond the bounds envisioned by the Founders and outlined in the constitutional text. And, as Damon Root points out, the Founders were the ones who included an amendment provision in the Constitution in the first place, in part because they recognized that their work would need to be improved over time. Milbank also errs in assuming that the necessary number of states is 33 (which is actually just under two thirds) rather than 34.

On balance, I think that the Repeal Amendment would be a small but genuine improvement over the status quo. Given my view that the present size of the federal government is far too large, I welcome efforts to cut it back. A very modest step in the right direction is still worth taking. If the Repeal Amendment could be enacted with little or no effort, I’m all for it. At the same time, I think supporters of limits on federal power should carefully consider whether this Amendment is the best possible investment of our limited political capital. Given the extreme difficulty of enacting any constitutional amendment and the relatively modest payoff to be expected from this one, it’s possible that our resources might be better invested elsewhere. I’m not certain that’s true. But the relevant opportunity costs need to be carefully weighed in advance.

In this post commenting on the revelation that former Republican National Committee chairman Ken Mehlman is gay, Yale lawprof Jack Balkin argues that the recent spate of state anti-gay marriage constitutional amendments may significantly retard progress towards gay equality:

[Ken] Mehlman was the chair of the Bush 2004 presidential campaign, which deliberately used opposition to same-sex marriage–and indeed, moral opposition to homosexuality–as a way of increasing turnout among members of the Republican base. One way of doing this was to work with anti-SSM groups to schedule votes on state constitutional amendments that would prohibit the recognition of same sex marriage. As a result of this strategy, thirteen states passed such amendments during the 2004 election cycle, followed by a dozen or so more in the next four years.

These amendments matter because they complicate the most obvious path toward marriage equality: proceed state by state and get a majority (or more) of states to recognize same-sex marriage. After that occurs, it is much easier for the federal courts and the Supreme Court to consider a challenge to laws banning same sex marriage.

A few states with such constitutional amendments would not be a very serious obstacle……

The problem is that as a result of the 2004 Bush campaign, a much greater number of states have constitutional amendments that block both ordinary legislation and judicial interpretation of state constitutions. At last count, 29 states had constitutional bans on same sex marriage.

I criticized arguments similar to Balkin’s here, here, and here. To briefly summarize my main points, I doubt that these amendments will have more than a minor effect for two reasons. First, most of them are in states that are unlikely to enact gay marriage anytime soon. Even more importantly, most are in states with easy to amend constitutions. The vast majority of the amendments in question were enacted by a majority vote referendum, similar to that which led to the passage of California’s Proposition 8. When and if public opinion in those states shifts decisively in favor of gay marriage, advocates can easily reverse those amendments by sponsoring a referendum initiative of their own. To be sure, such an effort requires funding and organization. But gay marriage advocates are reasonably strong in both areas. For these reasons, the anti-gay marriage amendments will ultimately cause no more than brief delays in the enactment of gay marriage once majority opinion comes to support it.

On a less important note, I think Balkin also overstates the importance of Mehlman’s and Bush’s role in the passage of these amendments. Given the massive outcry that the Massachusetts Supreme Judicial Court’s 2003 pro-gay marriage decision caused among social conservatives, it is likely that conservative groups would have tried to put as many amendments on state ballots as they could, even absent Mehlman’s efforts.

Balkin also criticizes Mehlman for “us[ing] moral opposition to homosexuality as a lever to get out the vote” in 2004, despite the fact that he was a supporter of gay marriage himself. Although one can theoretically be opposed to gay marriage without also opposing homosexuality as such, it is very likely true that most of those who oppose the former do so in large part because of their opposition to the latter. That said, I’m not sure that Mehlman is as blameworthy as Balkin suggests. In politics, it is not unusual to support one candidate over another despite the fact that the preferred candidate has objectionable views on some issues. Perhaps Mehlman believed that Bush’s superiority over John Kerry on other issues was great enough to justify doing all he could to elect the former despite the likely negative impact on gay marriage. Maybe he also believed (as I do) that these amendments would not have much longterm effect. Like most political operatives, Mehlman is no saint. But he may not be as big a sinner as Balkin suggests.