Mansfield Fox

Law student. Yankees fan. Massive fraggle. Just living the American dream.

Monday, July 11, 2005

For Deliberative (Not Consensus) Amendment

Will Baude comments on a Balkinization post by Dan Solove on making the Constitution easier to amend.

My thoughts (though bear in mind I'm not as smart as either Will or Solove):

1. It's a good idea, because the underlying descriptive analysis (the fracas over judicial appointments really does spring out of the fact that the Constitution is impossible to amend) is spot-on.

2. The solution, though, is not to stay within the "consensus" framework (large supermajorities needed to proceed with ratification) but to reduce the size of the required supermajorities. I have a hard time imagining that you're going to come up with a number of votes low enough that it won't be subject to the current gridlock problem, but not so low that we won't have too much constitutional amending, with temporary majorities constantly monkeying with our basic law.

3. Instead, the solution is to supplement the current process by adding a "deliberative" option. You allow a majority of each house of Congress to pass an amendment, but require that they vote to approve the amendment twice, once before and once after a Congressional election. Thereafter, it would go to the states under the same procedure we use now. (Getting the states on-board doesn't really seem to be the problem we're addressing here.) This would give individual Congressmen a chance to ponder these issues at length, rather than deciding in a fit of passion after some ill-received court decision. And it would give the people, the "We" in whose voice the Constitution ostensibly speaks, a chance to weigh in, since the intervening election would almost certainly be a referendum on the proposed amendment. But the simple majority requirement would acknowledge that there are fundamental issues critical to the Republic, to which we need an answer - do the states have the power to ban abortion? can the government take account of race? does the 14th Amendment require citizenship for the children of illegal immigrants born in the US? - on which we are simply too divided as a country for a supermajority to be formed in support of any position. "Sustained majorities over time" may not be a great solution, but it's better than "whatever five Supreme Court justices think".

4. This new option should be a supplement, rather than supplant, the procedure we have now, on the theory that in the future there might be some glaringly obvious need for an amendment stat (say, the Supreme Court was full of jurisprudential reincarnations of the Four Horsemen who narrowly read the Commerce Clause and another Great Depression struck; for good or ill, there'd probably be substantial support for authorizing greater regulatory powers for the federal government, ASAP) and it seems imprudent to oblige future generations to go through a potentially multi-year process if there were supermajority support for a change right away.

Anyway, I'm sure you were eager to hear my thoughts on the matter. And there they are.

UPDATE: "not crazy" - a ringing endorsement! :-D

SUBSTANTIVE UPDATE: Yeah, I think there'd clearly have to be time restrictions placed on it, such that it would have to be voted for in 2 consecutive Congresses. As for renunciation, I don't see why not. The goal of the scheme is to promote deliberation; I don't see why, if one Congress votes for a measure, then thinks better of it and repeals it before the next Congress comes in, that decision shouldn't be honored. As for repeals after the measure has been approved twice and sent to the states, I'm not so sure. That would seem to unsettle the situation too much. What are the current rules? Can a supermajority in one house bindingly rescind its vote for an amendment while it's still pending before the states?

UPDATE, THE THIRD: I really have to read Will's post carefully before I reply, so I don't miss all the arguments. The 1/3 of the Senate thing I did realize; I think it's better to just do one election cycle, nevertheless, because a) dragging it out over 3 election cycles seems like too heavy a burden, and b) I sense the issue would lose some of its salience over time, making the effectiveness of the election as a referendum on the amendment diminish strongly over time. I realize there would be ways to game the process (propose conservative amendments just before elections in which the conservatives up for reelection all have safe seats) but I think those are worth swallowing to avoid dragging the amendment process in Congress out over a six-year span. That could be wrong, though, and I'm open to persuasion on the point.