Levinson - Responding to Imperfection: the Theory and Practice of Constitutional Amendment

RESPONDING TO IMPERFECTION

RESPONDING TO IMPERFECTION

THE THEORY AND PRACTICE OF CONSTITUTIONAL AMENDMENT

Sanford Levinson, Editor

PRINCETON UNIVERSITY PRESS PRINCETON, NEWJRSEY

Copyright 1995 by Princeton University Press

Published by Princeton University Press, 41 William Street,

Princeton, New Jersey 08540

In the United Kingdom: Princeton University Press,

Chichester, West Sussex

All Rights Reserved

Library of Congress Cataloging-in-Publication Data

Responding to imperfection : the theory and practice of constitutional amendment / Sanford Levinson, editor.

p. cm.

Includes index.

eISBN 1-4008-0489-2

1. United StatesConstitutional lawAmendments.

2. Constitutional amendments. I. Levinson, Sanford, 1941 . KF4555.A75R47 1995

342.7303dc20

[347.3023] 94-27766 CIP

This book has been composed in Galliard

Crude Foyer from Collected Poems by Wallace Stevens, copyright 1947 by Wallace Stevens, is reprinted by permission of Alfred A. Knopf, Inc.

TO THE MEMORY OF

Judith Shklar

WHO FEARLESSLY ANALYZED

THE MEANING OF LEGALISM

IN THE LATE TWENTIETH CENTURY

I AM GRATEFUL to various program chairs of the American Political Science Association, who allowed me to organize panels over a four-year period that explored various aspects of the issues surrounding constitutional change and the notion of amendment. Several of the papers in this volume were first presented in that venue, and others were suggested by the discussions that ensued. A key participant in two of those panels was Will Harris, of the University of Pennsylvania. Unfortunately, circumstances made it impossible for him to contribute to this volume, but no one should doubt the immense impactreflected explicitly in several of the essaysthat he has had on those who study the theory of constitutional amendment. Chapter Four of his book The Interpretable Constitution is essential reading for anyone who shares these interests (as is, indeed, the entire book).

As always, the University of Texas Law School was supportive in every way, not least by giving me the opportunity to teach a seminar on the metatheory of constitutional amendment. My secretary, Cheryl Harris, is unending in her conscientiousness and good cheer, which made preparation of the final manuscript much easier.

I am also grateful to Malcolm DeBevoise of Princeton University Press for his consistent encouragement of this project, and for his toleration of the inevitable delays attached to edited collections. I appreciate as well Lois Kriegers thoughtful copy editing. Most of all, though, I must thank the contributors themselves, who participated in this project with unfailing cooperation.

RESPONDING TO IMPERFECTION

One

SANFORD LEVINSON

ON JUNE 11, 1787, George Mason of Virginia opened the discussion of constitutional amendment at the constitutional convention in Philadelphia with a forthright statement that the plan now to be formed will certainly be defective, as the Confederation has been found on trial to be. Amendments therefore will be necessary, and it will be better to provide for them, in an easy, regular and Constitutional way than to trust to chance and violence.

The title of this collection, Responding to Imperfection, is a recognition of Washingtons and Masons wisdom. One should not minimize the importance of their acknowledgment of imperfection. Surely more than a few founders of political orders have been tempted to adopt John Lockes conceit, when he drafted the 1669 Fundamental Constitutions

This truly radical implication of the notion of amendment is more than a little frightening, and James Madison can perhaps be viewed as trying to return to a more Lockean emphasis on inalterability when he emphasizes in The Federalist, No. 49 the need for a reverence for the laws that should, consequently, lead us to reject any frequent recourse to popular appeals that would carry an implication of some defect in the government. As Stephen Griffin argues in his essay in this book, the success in achieving Madisons sacralization of the Constitution may well have been purchased at a price of discouraging recognition of its all-too-present imperfections and/or blinding us to the ways that we have in fact responded to those imperfections by significantly, if sometimes stealthily, modifying our constitutional principles.

In any event, perhaps the basic questions within any jurisprudential system will be, first, the substantive criteria by which one in fact defines imperfection and, then, the procedural means by which one responds to any such recognitions. How does (or should) presumptively necessary change take place within a given legal order? These are, obviously, analytically separable questionsone is descriptive, the other normative. Both are, however, central to this book.

As Washington noted, the framers of the Constitution themselves indirectly acknowledged the possibility of imperfection by including within it Article V, which provides a procedure of amendment. Given the frequency with which Article V will be cited in the articles below, it is probably most efficient to set it out in full here (and, concomitantly, to ask the reader to return here when necessary in order to consult the specific text of Article V):

Article V

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.