Much of what you see in this book may not be a part of the Constitution in thirty years, while some of the other chapters refer to remarkable constitutional changes that have occurred. This chapter explores why and how such changes occur. Although most constitutional change is the result of gradual shifts in crucial facts or in the fundamental values of the public, disastrous mistakes and catastrophic events also play a significant role in spurring action by creating or exposing flaws in our higher law. Whenever the nation decides to alter course, constitutional reform may be expressed through many forms, beginning with (though not limited to) the most obvious, a formal constitutional amendment. These amendments, however, have been quite rare, especially after the first ten, now collectively referred to as the Bill of Rights, were added in 1791. The more common methods of change involve new practices within the elected branches, sweeping Acts of Congress (sometimes referred to as “superstatutes” in light of their fundamental importance),1 or transformative Supreme Court doctrine. Given that textual amendments are so rare and constitutional change is so common, the other three methods of reform must be better understood to explain why the only method of change specified in the Constitution is so neglected, and whether that is a problem.2
Attorneys are trained to pay careful attention to details, but no serious discussion of constitutional reform can begin without asking a broad question: What motivates our society to change its basic law?3 Although it is impossible to categorize all of the rationales that (p. 910) explain these revisions, four ideas are helpful in understanding substantial constitutional reform at the federal level: (1) “error correction” to bring back a prior status quo, (2) technological innovations that require courts to revisit the application of established legal principles, (3) the abandonment or development of a widely held cultural assumption that leads to the expansion or contraction of a legal principle, and (4) a response to a cataclysmic event that exposes a latent defect in the constitutional design.
The first type of constitutional change on this list could be described as no change at all. Error correction covers some constitutional amendments that overruled a particular Supreme Court holding, and a handful of judicial opinions that repudiated a controversial precedent.4 All of these acts in some sense brought about constitutional change, but a more realistic assessment is that they were simply remedies for a proposed reform that lacked a sufficient consensus5 and generated support for returning to a previous status quo. Consider the constitutional pirouette whereby the Twenty-First Amendment restored the law on alcoholic beverage sales to where it was prior to the ratification of the Eighteenth Amendment, with its ban on the manufacture and sale of alcoholic beverages. The repeal of Prohibition was a major political event, but all that happened was that the nation decided that a constitutional revision made some fifteen years before was wrong.6
A second engine of constitutional reform (and legal change more generally) is technological growth, which forces courts to reassess the implementation of traditional concepts. The commerce clause is read more broadly now than it was one hundred or two hundred years ago, and that is partly the result of breakthroughs in communications and transportation that made the United States a much smaller place.7 Likewise, the Fourth Amendment must periodically be recast to address new law enforcement tools that can (p. 911) search homes and individuals remotely.8 Recent cases, for example, include the proper response to the placement of global positioning systems on automobiles by the police9 or whether the National Security Agency can rely on a 1979 precedent about the recording of phone call information to justify its contemporary ability to determine the recipient of every phone call made in the United States.10 Judges interpreting the First Amendment must also respond to new inventions, including movies, radio, television, cable, and the Internet, that have reset the boundaries of the freedom of speech or, to the extent that there is a difference, “the press.” When new facts are the catalyst for legal action, the subsequent conversation usually takes place among judges, scholars, interest groups, and elected officials, but rarely engages large segments of the general public.
A third significant basis for constitutional action is that the fundamental values or beliefs underlying the law change.11 Attitudes towards race are far different today than they were in 1850, 1920, or even 1960, and thus it should come as no surprise that the constitutional law of race is now very different from what it was before the Civil War or during Jim Crow.12 Especially dramatic in this regard has been the relative rapidity of constitutional protection regarding sexual orientation.13 Some, and not only originalists, argue that the Constitution always guaranteed the rights now recognized, even if it took a long time for that recognition to be achieved. Others, though, regard that argument as a legal fiction that is necessary to preserve the Constitution’s legitimacy.14
Likewise, the virtues of democracy and direct elections have grown in the eyes of most Americans over the past two centuries, and that change in sentiment was expressed through a series of Article Five amendments and several Supreme Court cases.15 Unlike (p. 912) legal change motivated by technological advances, popular movements usually drive the debate about these constitutional values or beliefs. Sometimes this evolution is the result of a social movement that stands outside of the two political parties, such as the campaign for gender equality in the 1960s and 1970s.16 Sometimes it is an intensely partisan affair, with one party serving as the army of reform while the other party defends the established order.17 Either way, these political debates are boisterous and are not resolved for a long time but, once they are, usually result in durable change, especially if the losing party, realizing that defending the status quo is losing them votes and elections, accedes to the new constitutional order. Militant Republican opposition to the New Deal, for example, was succeeded by basic acceptance of the regulatory state in the 1950s.
The fourth way of understanding constitutional reform is as a sudden response to some extraordinary event.18 One example is the Twelfth Amendment, which set the modern rules for the Electoral College. This revision was necessitated by the 1800 presidential election fiasco that followed a tie in the electoral vote between Thomas Jefferson and his ostensible running mate (Aaron Burr). This forced the House of Representatives to choose the winner, and it proved unable to do until the thirty-sixth ballot, just three weeks before the March 4th inauguration day.19 The original Constitution did not separate candidates for the presidency and vice presidency; instead, the two votes of each elector were just tallied and whoever came in first, assuming majority support, became president, while the runner-up, whatever the vote, became vice president. This meant, for example, that Thomas Jefferson, John Adams’s political foe, served as his vice president between 1797 and 1801. The deadlock in 1800 helped convince the nation that this was a harmful design flaw that needed attention.20 Thanks to the Twelfth Amendment, electors now cast their votes separately for the offices of president and vice president. A related example is the Twenty-Fifth Amendment, which created a process to fill a vice-presidential vacancy and deal with presidential disability. Under the original Constitution, vice presidents were not replaced if they died, resigned, or became president. Nor was there any clear procedure to deal with an incapacitated president.21 Many vice presidents died in office in the (p. 913) nineteenth century, James Garfield and William McKinley did not die immediately when they were the victims of assassins, and Woodrow Wilson was incapacitated following a stroke while campaigning for ratification of the Versailles Treaty in 1919. But during the Cold War, John F. Kennedy’s assassination and the prospect of the lack of a vice president presumably qualified to take over in a similar situation were viewed as exceptionally dangerous. The Twenty-Fifth Amendment was ratified just four years after President Kennedy’s death.22
What often distinguishes constitutional changes that need a devastating catalyst from those that do not is the scope of the flaw at issue. In other words, inconsistencies that definitely affect a significant number of people are more likely to provoke a response than those that reach a small number of people or are seen as remote possibilities. Take the Constitution’s rule that naturalized citizens cannot become president. Hardly anyone still defends this as a good idea, as immigration is now seen as a basic part of our national identity.23 The rule remains, though, because no naturalized citizen has been seriously promoted as a potential president, and because (in practice) only a handful of people bear the burden of that discrimination. A shift will probably occur only if a naturalized citizen with sufficient charisma emerges as a political force.24 Another example of a latent defect is the Constitution’s requirement of an election to fill a vacancy in the House of Representatives.25 Most of the time this is not a problem, but if a terrorist attack killed more than half of the House of Representatives, then it would take months to replace those members and give us a Congress.26 Yet efforts to amend the Constitution to give state governors the power to appoint temporary representatives—just as many can appoint temporary senators—have floundered.27 Sadly, a tragedy at the Capitol and the ensuing chaos may be the only way to generate enough support for this reform.
In sum, constitutional change results from a combination of mistakes, thoughtful deliberation, and troubleshooting. When the desire for reform reaches a tipping point, however, the question turns to the best way of translating that desire into reality.
A question that law students often ask about constitutional change is why so little of it occurs through formal constitutional amendments.28 Few doubt that the Constitution is frequently changed by other means, but why is that so, and when is that not possible? Answering these questions requires a keen awareness of three mechanisms of reform outside of Article Five: (1) new customs within the elected branches; (2) broad statutes enacted by Congress and upheld by the Supreme Court; and (3) unilateral decisions by the Supreme Court.29 Textual amendments are generally used only when these other methods are unavailable because of deeply entrenched norms in the legal and political professions. The scarcity of amendments does not usually pose a problem,30 though there could be some situations where that is not the case because an essential constitutional change must be made through the demanding Article Five process, as with fundamental structures or numerical requirements, such as the two- and six-year terms for representatives and senators, respectively, or the voting rules for proposing and ratifying new constitutional amendments.31
One unheralded aspect of how constitutional change occurs is that much of it happens within the elected branches and is never addressed by courts. Significant portions of the text are not justiciable (in other words, the Supreme Court holds that they are not subject to judicial review) and thus the president and/or Congress control their application.32 If one or both of those branches choose to change those aspects of the Constitution, then that can be done subject only to the limits imposed by public opinion and the political weapons wielded by the other branch or another House of Congress.33 Some examples include the exercise of the war power, the scope of the Senate filibuster, the meaning of the guarantee clause in Article Four, the power of impeachment, and the construction of Article Five itself.34
(p. 915) Acts of Congress are another powerful tool for constitutional reform. Many of the rights that Americans consider fundamental, such as Social Security and the freedom from private racial or gender discrimination, come from statutes.35 There is a world of difference between what the Constitution permits Congress to do and what Congress actually does, especially with respect to remedies for violations of constitutional rights.36 The blessing of the Supreme Court is usually required for these congressional initiatives, but the Court cannot act on its own.37 As long as Congress and the president think that the Court will approve a statute, they have a good reason to pursue that course of action to generate new constitutional law.38 Moreover, some of these statutes become fixed points for legal reasoning or establish institutions (such as the Federal Reserve) that became permanent as if they were expressly mentioned in the Constitution.39
The other way of changing the Constitution outside of Article Five is the one that gets the most attention—a decision by the Supreme Court that reinterprets a part of the text that limits the government. These decisions (at least the major ones) are not common and often come only after years of activity in state legislatures that recognize the right in question.40 Nevertheless, because these opinions lack institutional support from Congress and from some states, the Court is vulnerable to the charge of illegitimate activism.41 By contrast, constitutional reforms undertaken through new customs or federal laws always carry the endorsement of at least one branch that is accountable to the voters. That does not mean that those actions are always valid or that the Court must wait for a nod from the elected branches, but combined action is more likely to be successful in the long run.
The three avenues of change just discussed may look fragile, but in practice they are as effective at making constitutional reform stick as an Article Five amendment. Congress or the White House can change its internal practices at any time, but many important customs that serve as interpretations of the Constitution, such as the standard required to impeach and remove federal judges, have lasted since the beginning of the republic.42 Statutes can be repealed fairly easily, but there is no chance that Congress will repeal (or (p. 916) that a president would agree to repeal) texts such as the Social Security Act or the Civil Rights Act of 1964. And although the Supreme Court can overrule precedent, many classic constitutional cases—Marbury v. Madison43 and Loving v. Virginia44 to name just two—are now untouchable. On the other hand, Article Five amendments do not have a perfect record of making constitutional change last. Prohibition is the most direct example of a flouted amendment, but the Fifteenth Amendment was also widely ignored in the South for almost a century after its ratification.45
The main reason so much constitutional change can be accomplished without an Article Five amendment is that legal elites—often, as a practical matter, joined by a citizenry that is more interested in given results than in seemingly esoteric debates about constitutional theory—accept interpretive approaches that read the text in light of contemporary views. Franklin D. Roosevelt proclaimed in his First Inaugural Address that “Our Constitution is so simple, so practical that it is possible to meet extraordinary needs without loss of essential form. That is why our constitutional system has proved itself the most superbly enduring political mechanism the modern world has ever seen.”46 Roosevelt’s statement is true only insofar as lawyers and politicians accept that certain constitutional provisions can be read liberally.
This issue was debated almost immediately after the Founding when Congress created the First Bank of the United States, and Alexander Hamilton’s broad construction of the powers enumerated in Article One, Section Eight persuaded President Washington to sign the bill over Thomas Jefferson’s objections.47 When the Supreme Court upheld the constitutionality of the Second Bank of the United States in 1819, Chief Justice John Marshall provided a famous defense of a generous interpretive approach, declaring that a constitution “requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects, be deduced from the nature of the objects themselves.”48 After all, as Marshall reminded us, the Constitution must be “adapted to the various crises of human affairs,” and he clearly was not referring to the need for a formal amendment to achieve such needed adaptations. The Framers’ generation, in other words, set the precedents that, right after the Constitution’s adoption, drained Article Five of much of its practical significance.49
(p. 917) Nevertheless, there are circumstances where professional norms will not permit a constitutional change through interpretation or construction. The most straightforward situation occurs when the Supreme Court is dead set against the idea, which is one way of saying that relevant legal elites—that is, those with sufficient connections and prestige to warrant appointment to the federal judiciary—think that a particular interpretation is out of bounds.50 Reform on justiciable subjects must gain the support of the justices at some point, and if that is not possible within a reasonable time then a constitutional amendment is the only solution. When Congress passed the Equal Rights Amendment and sent it to the states for ratification in 1972, only one Supreme Court case said that discrimination against women was a constitutional problem.51 If the Court had maintained that posture, then the Equal Rights Amendment might well have been ratified. Instead, the proposal fell a few states short of the three-fourths required, in part because the Court held in the midst of the ratification debate that henceforth statutes discriminating on the basis of gender would be subjected to heightened scrutiny.52
Another situation where Article Five is the only option comes when the text is quite specific. For example, the Constitution says that the Senate “shall be composed of two Senators from each state.” No acceptable interpretation of that provision could give Texas more senators than Rhode Island if the nation wanted to change the apportionment of the Senate.53 The law would lose much of its authority (or at least many attorneys and judges would think so) if clear statements on significant matters could mean something else if a majority insisted. Textual precision explains why most of the expansions to suffrage in the United States have come through formal constitutional amendments, as the Constitution says several times that eligibility to vote in federal elections is usually a matter of state law.
Finally, a constitutional amendment may be necessary when the text is capable of a different reading, but doing so would contradict long-standing practice in a way that would look illegitimate. Some lawyers argued that slavery was unconstitutional prior to the Civil War.54 As the Framers were careful to omit the words “slave” or “slavery” from (p. 918) the Constitution, one could imagine a Supreme Court opinion written in 1865 striking down that evil. The problem was that everyone knew that slavery was a part of the original Constitution, and thus convincing the nation to accept a judicial solution at that time would have been challenging, and was never contemplated.55 Likewise, federal judges have life tenure based on an unbroken reading of the Constitution’s requirement that judges “shall hold their Offices during good behavior.” This is a term of art that is vague enough to support the imposition of a term limit by Congress, but life tenure is so embedded in our legal system that it is hard to imagine the bar and bench accepting that change without a textual amendment.56
The upshot of this analysis is that constitutional amendments are scarce because the exceptions that require the Article Five process are uncommon, not because the Constitution makes it too hard to ratify an amendment.57 There was no consensus until the twentieth century that constitutional amendments were “too hard” to obtain, and that claim grew out of an argument that Franklin Roosevelt used to defend his Court-packing plan in 1937.58 Although amending the U.S. Constitution is more difficult than amending various state constitutions and some other national constitutions, there is no reason to think that constitutional changes as a whole are more difficult in the United States. If there were some reason to think that an Article Five amendment was a superior form of legal action, then the relative difficulty of ratifying one might present an issue. The arguments on that score, though, are not convincing.
There are two plausible points that could be made in favor of channeling more constitutional change into formal amendments. One is that there may be some symbolic value to putting something directly into the Constitution, which may explain why the Thirteenth Amendment prohibiting slavery was so crucial. But most of the other Article Five amendments (the Bill of Rights aside) lack any mystical appeal. Another thought would be that constitutional change is too easy at the federal level. Under this rationale, there should be more exceptions to the rule that customs, statutes, and cases can change our higher law, or perhaps they should be the exceptions and constitutional amendments the rule. There is nothing inherently wrong with that position, but it does contradict two centuries of practice and is hard to justify given the law’s need to preserve its legitimacy by adapting to the (p. 919) needs of society. Furthermore, it is not clear that the procedure set forth in Article Five, which is focused almost entirely on legislatures and is largely state-centered, is the best way of ascertaining those needs.59
It is fair to say, though, that the supermajorities required by Article Five may make it too hard to change the parts of the Constitution that cannot be altered in any other way. In the nineteenth century a British scholar observed that: “The House of Lords has lasted for centuries; the American Senate has now existed for more than one hundred years, yet to abolish or alter the House of Lords might turn out to be an easier matter than to modify the constitution of the Senate.”60 This prediction proved correct, but whether that is cause for concern depends on the merits and the popularity of these unbendable provisions. There is no groundswell of support for changing structural features such as bicameralism, federalism, and fixed terms for members of Congress and the president, but one could say that the difficulty of ratifying a constitutional amendment on these subjects discourages Americans from giving serious consideration to the alternatives.61
In sum, constitutional amendments are typically unnecessary to change constitutional law or culture. There is no significant advantage to using the Article Five process when other options are available, which is why political activists of all stripes focus on litigation and influencing public opinion rather than hammering out proposed changes to the Constitution itself.
In Federalist 1, Hamilton said that the question before the nation was “whether societies of men are really capable or not, of establishing good government from reflection and choice, or whether they are forever destined to depend, for their political constitutions, on accident and force.”62 With respect to constitutional ends, these are not mutually exclusive choices. Legal change is often the product of reason, but there are occasions where fate or folly forces a sudden change. With respect to constitutional means, the Framers were of two minds. They gave us a written Constitution and a formal way to amend that text, but they also pioneered the informal methods to change our higher law without an amendment. While the text rarely changes, the subtext is constantly in motion.
- Ackerman, B, The Failure of the Founding Fathers: Jefferson, Marshall, and the Rise of Presidential Democracy (2005) Vol 3.
- ———. We, The People: The Civil Rights Revolution (2014).
- Amar, A, America’s Constitution: A Biography (2005).
- ———. America’s Unwritten Constitution: The Precedents and Principles We Live By (2012).
- Bagehot, W, The English Constitution (1872).
- Balkin, J, Living Originalism (2011).
- Chernow, R, Alexander Hamilton (2005).
- Cooke, J (ed), The Federalist (1961).
- Cooper, J, Woodrow Wilson: A Biography (2009).
- Cramton, R and Carrington, P (eds), Reforming the Court: Term Limits for Supreme Court Justices (2006).
- Dicey, A, Introduction to the Study of the Law of the Constitution (1958).
- Epps, G, American Epic: Reading the U.S. Constitution (2013).
- Eskridge W and Ferejohn, J, ‘Super-Statutes’ (2001) 50 Duke Law Journal 1215.
- Friedman, B, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution (2009).
- Greenhouse, L and Siegel, R, Before Roe v. Wade: Voices That Shaped the Abortion Debate before the Supreme Court’s Ruling (2010).
- Holmes, O, ‘The Path of the Law’ (1897) 10 Harvard Law Review 457.
- Klarman, M, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (2006).
- Kyvig, D, Explicit and Authentic Acts: Amending the U.S. Constitution, 1776-1995 (1996).
- Levinson S, Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People Can Correct It) (2006).
- Maier, P, Ratification: The People Debate the Constitution, 1787-1788 (2012).
- Magliocca, G, Andrew Jackson and the Constitution: The Rise and Fall of Generational Regimes (2007).
- ———. ‘Court-Packing and the Child Labor Amendment’ (2011) 27 Constitutional Commentary 455.
- ———. ‘The Constitution Can Do No Wrong’ (2012) 2012 Illinois Law Review 723.
- Okrent, D, Last Call: The Rise and Fall of Prohibition (2011).
- Primus, R, The American Language of Rights (1999).
- Rehnquist, W, Grand Inquests: The Historic Impeachments of Justice Samuel Chase and President Andrew Johnson (1992).
- Rosenman, S, Public Papers and Addresses of Franklin D. Roosevelt (1941).
- Sabato, L, A More Perfect Constitution: Why the Constitution Must Be Revised: Ideas to Inspire a New Generation (2007).
- Siegel, R, ‘Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the De Facto Era’ (2006) 94 California Law Review 1323.
- Spooner, L, The Unconstitutionality of Slavery (1845).
- Strauss, D, ‘The Irrelevance of Constitutional Amendments’ (2001) 114 Harvard Law Review 1457.
1 See, e.g., Eskridge W and Ferejohn J, ‘Super-Statutes’ (2001) 50 Duke Law Journal 1215. This is also a major theme of Bruce Ackerman’s argument in We the People: The Civil Rights Revolution (2014) Vol 3, which contends that the landmark civil rights statutes enacted in the 1960s were the equivalent of a formal constitutional amendment.
2 The most thorough book on formal constitutional change is Douglas Kyvig’s study, which reviews every constitutional amendment and significant amendment proposal made from the Founding until the 1990s. See Kyvig, D, Explicit and Authentic Acts: Amending the U.S. Constitution 1776-1995 (1996).
3 My working definition of constitutional change in the United States includes textual amendments, shifts in the interpretation or application of the text that upset settled expectations, or substantial alterations in the unwritten traditions that channel the discretion of elected officials and judges who act in the name of the Constitution.
4 See, e.g., West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) (invalidating a state law mandating the recitation of the Pledge of Allegiance by public schoolchildren and overruling Minersville School District v. Gobitis); Pollock v. Farmers’ Loan and Trust Co., 157 U.S. 429, aff’d on reh’g (1895), overruled by U.S. Const., amendment XVI (“The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.”); Knox v. Lee, 79 U.S. (12 Wall.) 457 (1871) (upholding the constitutionality of federal paper money and overruling Hepburn v. Griswold); Chisolm v. Georgia, 2 U.S. (2 Dall.) 419 (1793), overruled by U.S. Const., amendment XI (“The Judicial Power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”).
5 The Twenty-Second Amendment dealt with a related problem, as Franklin D. Roosevelt violated a deeply rooted tradition by running for (and winning) a third term in 1940 and a fourth term in 1944. See U.S. Const., amendment XXII, section 1 (“No person shall be elected to the office of the President more than twice …”). The amendment did change the law in response to FDR’s actions, but only to codify what had long been a political assumption. See Epps, G, American Epic: Reading the U.S. Constitution 212–213 (2013).
6 See generally Okrent, D, Last Call: The Rise and Fall of Prohibition (2011) (providing a superb overview of this unsuccessful experiment).
7 Compare Gonzales v. Raich, 545 U.S. 1 (2005) (reading the commerce clause broadly and upholding an Act of Congress prohibiting the production and use of marijuana even for intrastate medicinal purposes), with Hammer v. Dagenhart, 247 U.S. 251 (1918) (invalidating an Act of Congress that barred the interstate movement of goods made by child labor as beyond the commerce power), overruled by United States v. Darby, 312 U.S. 100 (1941). In fairness, the expansion of the commerce clause was also about an ideological shift with respect to what the federal government should do.
8 Compare, e.g., Katz v. United States, 389 U.S. 347 (1967) (holding that the Fourth Amendment protects a “reasonable expectation of privacy” and is not limited to specific physical spaces), with Olmstead v. United States, 277 U.S. 438 (1928) (holding that wiretaps were not covered by the Fourth Amendment because they did not involve a trespass and were therefore not a search).
9 See United States v. Jones, 132 S. Ct. 949 (2012) (holding that the attachment of a GPS to a car by law enforcement and the subsequent monitoring of the vehicle’s movements was a search under the Fourth Amendment).
11 This reassessment often occurs in response to concrete abuses that draw substantial attention. See Primus, R, The American Language of Rights (1999) (explaining that aspect of constitutional reform at the Founding, Reconstruction, and the Cold War). The best study of the relationship between the Supreme Court and public opinion is by Barry Friedman. See Friedman, B, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution (2009).
12 See, e.g., U.S. Const., amendment XIII, section 1; Brown v. Board of Education, 347 U.S. 483 (1954) (outlawing racial segregation in the public schools); Klarman, M, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (2006) (providing a comprehensive discussion of racial justice and the Supreme Court). Law, of course, plays a role in shaping these values, but substantial legal reform cannot happen without some change in attitudes.
13 Compare, e.g., Bowers v. Hardwick, 478 U.S. 186 (1986) (holding that there was no constitutional right to engage in same-sex sodomy), with Lawrence v. Texas (2003), 539 U.S. 558 (2003) (overruling Bowers); see also Windsor v. United States, 133 S. Ct. 2675 (2013) (invalidating the exclusion of state-authorized same-sex marriages from federal recognition).
15 See, e.g., U.S. Const., amendment XXVI, section 1; amendment XXIV, section 1; amendment XIX; amendment XVII; Reynolds v. Sims, 377 U.S. 533 (1964) (establishing the “one person, one vote” standard for the drawing of legislative districts).
16 See Balkin, J, Living Originalism 11–12 (2011); see also Amar, A, America’s Unwritten Constitution: The Precedents and Principles We Live By 295–297 (2012) (discussing this example).
17 See, e.g., Magliocca, G, Andrew Jackson and the Constitution: The Rise and Fall of Generational Regimes (2007) (exploring the partisan fight that reshaped the Constitution in the 1830s and setting forth a theory to explain that phenomenon); see also Amar, n 16 above, 401 (stating that the Twelfth through the Fifteenth Amendments “emerged from a strictly partisan process in which one party simply steamrolled to victory under the banner of reform”).
18 The Fourteenth Amendment can be understood as one of these, as some of its provisions were a direct response to the Civil War. See U.S. Const. amendment XIV, section 3 (barring some ex-Confederates from federal and state office); ibid section 4 (stating that the Confederate debt was invalid and that the validity of the Union’s debt could not be questioned). The other sections of the Amendment, though, addressed broader principles that were debated for decades before the nation ratified them in 1868.
19 See Ackerman, B, The Failure of the Founding Fathers: Jefferson, Marshall, and the Rise of Presidential Democracy (2005) 3–108 (discussing this crisis); ibid 203–206 (exploring the Twelfth Amendment’s ratification in 1804).
20 See U.S. Const., article II, section 1, clause 3 (laying out the original procedures for the Electoral College). In fairness, the problem of 1800 could have been solved by establishing a custom whereby one elector of the winning party just “wasted” a vote on someone other than the vice-presidential running mate, which would have worked for almost every subsequent presidential election.
21 See, e.g., Cooper, J, Woodrow Wilson: A Biography (2009) 535–560 (discussing the confusion and uncertainty that followed President Wilson’s debilitating stroke in 1919).
22 See Amar, A, America’s Constitution: A Biography 449 (2005) (“Proposed in July 1965 and ratified in February 1967, the Twenty-fifth Amendment aimed to solve several of the problems that JFK’s assassination had made shockingly visible.”).
23 See, e.g., Levinson, S, Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We The People Can Correct It) (2006) 150–152. Naturalized and native-born citizens are treated alike in every other way under the law.
24 Granted, if a strong naturalized presidential candidate did emerge, then the other political party would have an incentive to block a constitutional amendment repealing the “native-born” requirement as applied to that person.
25 See U.S. Const., article I, section 2, clause 4 (“When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.”).
27 See U.S. Const., amendment XXVII (“[T]he legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.”).
28 The Bill of Rights must be viewed as sui generis because these amendments were made in response to demands from wavering states during the ratification debate on the Constitution itself. See generally Maier, P, Ratification: The People Debate the Constitution, 1787-1788 (2012) (discussing the debates in each state and the drafting of the Bill of Rights). Since 1791, there have been only seventeen Article Five amendments, and one of them—the Twenty-Seventh—was part of Madison’s original package presented to the First Congress. See Epps, n 5 above, 226 (noting Madison’s drafting role).
31 See, e.g., Balkin, n 16 above, 42 (noting that even “living constitutionalists” support applying the original understanding of precise rules stated in the text).
32 See, e.g., Dicey, A, Introduction to the Study of the Law of the Constitution (1958) 417–473 (discussing the role of constitutional customs that cannot be enforced in court).
34 See, e.g., Nixon v. United States, 506 U.S. 224 (1993) (holding that the Senate’s procedures in an impeachment trial are a political question); Coleman v. Miller, 307 U.S. 433 (1939) (stating that the question of whether a state has ratified a constitutional amendment is up to Congress); Luther v. Borden, 48 U.S. (7 How.) 1 (1849) (holding that the recognition of a legitimate state government is a political question under the guarantee clause); see also Baker v. Carr, 369 U.S. 186, 210–229 (1962) (discussing political questions).
36 For example, the Voting Rights Act of 1965 transformed the meaning of the Fifteenth Amendment even though it was formally just enforcing that provision. See Voting Rights Act, Pub. L. 89–110, 79 Stat. 437.
37 See, e.g., Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964) (upholding the constitutionality of the Civil Rights Act of 1964); National Labor Relations Board v. Jones and Laughlin Steel Corp., 301 U.S. 1 (1937) (upholding the validity of the National Labor Relations Act).
41 In some instances the Department of Justice will file a brief that asks the Court to strike down state or federal legislation, and this presidential endorsement can help insulate the Court’s decision from criticism.
42 In 1805, the Senate acquitted Justice Samuel Chase in an impeachment trial and thereby established the precedent that judges may not be removed from office merely because of a substantive disagreement with their opinions. See, e.g., Rehnquist, W, Grand Inquests: The Historic Impeachments of Justice Samuel Chase and President Andrew Johnson (1992) 15–134.
45 See, e.g., Giles v. Harris, 189 U.S. 475 (1903) (refusing to consider a challenge to Alabama’s Constitution preventing African Americans from voting). For a broader argument that Article Five amendments are not a significant source of constitutional change, see Strauss, n 30 above.
47 See Chernow, R, Alexander Hamilton (2005) 352–354 (describing Hamilton’s memorandum replying to Jefferson’s claim that the Bank was unconstitutional).
49 Arguably they did this because they felt that the Article Five amendment process was too onerous, but that conclusion is difficult to sustain given that two amendments (in addition to the Bill of Rights) were ratified while these precedents were being set for other forms of constitutional reform.
51 See Reed v. Reed, 404 U.S. 71 (1971) (invalidating a state statute that discriminated against women, as lacking a rational basis); Kyvig, n 2 above, 406–407 (noting the passage of the ERA in 1972). The ERA would have provided, in part, that “[e]quality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”
52 See Craig v. Boren, 429 U.S. 190 (1976) (applying intermediate scrutiny and invalidating a state law that applied different alcoholic beverage sale rules to young men and women; see also Frontiero v. Richardson, 411 U.S. 677 (1973) (plurality opinion) (arguing for strict scrutiny of sex discrimination); Siegel, R, ‘Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the De Facto Era’ (2006) 94 California Law Review 1323 (providing a thoughtful account of the relationship between the ERA and the Supreme Court’s sex discrimination cases and exploring the motives of those who opposed the amendment).
53 Customs can be used to rewrite clear textual provisions, but there is no way to guarantee that these customs will always be followed. One example involves the election of senators prior to the ratification of the Seventeenth Amendment, which was done by state legislatures. Many states came up with ways to turn that choice into a formality in favor of the Senate candidate who received the most popular votes. See Amar, n 22 above, 411–412 (explaining that about half of the states directly elected senators by 1913 through a primary in a one-party state or by holding a beauty contest and establishing a norm that the legislature would select the winner as the next senator).
54 See, e.g., Spooner, L, The Unconstitutionality of Slavery (1845).
55 In fairness, this may be a circumstance where the justices were simply unwilling to consider abolishing slavery on their own, rather than one that was intrinsically incapable of being done through an opinion.
56 For a creative alternative to a constitutional amendment altering life tenure for Supreme Court justices, see Cramton, R and Carrington, P (eds), Reforming the Court: Term Limits for Supreme Court Justices (2006) (proposing a statute that would limit justices to eighteen years on the Supreme Court but retain their life tenure to sit on other federal courts.)
57 See, e.g., Bagehot, W, The English Constitution (1872) (stating that Article Five requires that every constitutional amendment “must be sanctioned by a complicated proportion of States or legislatures. The consequence is that the most obvious evils cannot be quickly remedied; that the most absurd fictions must be framed to evade the plain sense of mischievous clauses”).
59 The only exception is that state conventions (instead of state legislatures) can ratify a constitutional amendment. This procedure was used to ratify the Twenty-First Amendment, in part because many state legislatures were apportioned in favor of rural districts that supported Prohibition. See Amar, n 22 above, 416–417.
60 Dicey, n 32 above, 174.
61 Article Five’s rule that “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate,” see U.S. Const., article V, presents a special problem, though that could be circumvented by an amendment that transfers the powers of the Senate to a new legislative body and leaves the Senate as a ceremonial institution.