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925
THE HYDRAULICS OF CONSTITUTIONAL
REFORM: A SKEPTICAL RESPONSE TO OUR
UNDEMOCRATIC CONSTITUTION
Heather K. Gerken*
TABLE OF CONTENTS
I. Introduction ........................................................................................... 925
II. The Process of Informal Constitutional Amendment....................... 929
III. The Benefits of Informal Amendment ............................................... 933
A. Common Threads in the Literature .............................................. 934
B. The Ongoing Contestability of Constitutional Law .................... 937
I. INTRODUCTION
Sandy Levinson’s latest book, Our Undemocratic Constitution
1
reveals
Levinson at his most provocative and engaging. We are trapped, he tells
us, in the “iron cage” of Article V. Our Constitution is in desperate need
of amendment due to structural flaws that are hard-wired into the text of
the Constitution.
2
In order to avert the many crises Levinson describes, we
must hold a constitutional convention.
3
Though the bulk of the book is devoted to what Levinson has
elsewhere termed “constitutional stupidities,”
4
Levinson’s real quarrel is
* Professor of Law, Yale Law School. A.B., Princeton University, 1991;
J.D., University of Michigan, 1994. Many thanks to Bruce Ackerman, Jack Balkin,
Daryl Levinson, Reva Siegel, and Adrian Vermeule for helpful comments and
suggestions. Excellent research assistance was provided by Sarah Burg, Elyse Cowgill,
Scott Grinsell, Matthew McKenzie, and Jennifer Nou.
1. SANFORD LEVINSON, OUR UNDEMOCRATIC CONSTITUTION (2006).
2. See id. at 167–68 (summarizing the constitutional provisions that Levinson
argues are undemocratic).
3. Id. at 173–75.
4. CONSTITUTIONAL STUPIDITIES, CONSTITUTIONAL TRAGEDIES (William N.
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926 Drake Law Review [Vol. 55
with Article V, which he argues “brings us all too close to the Lockean
dream (or nightmare) of changeless stasis.”
5
The book is replete with
references to Article V as a “cage,”
6
even an “iron cage—with its almost
kryptonite-like bars.”
7
When one reads the book, especially its mournful
concluding chapter admitting that little can be done,
8
it is hard to escape
the conclusion that if we loaned Levinson a constitutional eraser, Article V
would instantly disappear. If I am overreading Levinson, then at the very
least I take it that he wants to do anything possible to make constitutional
conventions easier to hold, whether that means developing a tradition of
having regular constitutional conventions, as Jefferson proposed,
9
or
loosening what are conventionally perceived as the strictures of Article V.
10
The usual rejoinder to supporters of the Jeffersonian model is that,
despite Article V, the Constitution has proved remarkably adaptive over
the years due to the “informal amendment process”—the many ways in
which the judicial and political process interact to forge constitutional
meaning. Levinson, however, is too sly an academic fox to ignore this
obvious move, so he limits his claims to what he identifies as the all-but-
immutable portions of the Constitution’s text: Article II, life tenure for
federal judges, the allocation of senatorial seats, the Electoral College.
11
For these provisions, Levinson tells us, the informal amendment process is
off the table.
12
And if we agree with Levinson’s case against these
immutable provisions, how could we possibly resist his call for formally
amending the Constitution?
What I want to suggest in this Article is that Levinson cannot take the
Eskridge, Jr. & Sanford Levinson eds., 1998).
5. LEVINSON, supra note 1, at 21.
6. See, e.g., id. at 20.
7. Id. at 165.
8. Id. at 167–80.
9. Id. at ix (quoting Letter from Thomas Jefferson to Samuel Kercheral
(July 12, 1816), in T
HE PORTABLE THOMAS JEFFERSON 1397––1402 (Merrill D.
Peterson ed., 1979)); id. at 17 (arguing that the book “is written in a Jeffersonian
vein”).
10. Id. at 177 (endorsing Akhil Reed Amar’s argument that a constitutional
convention would be binding if its proposals were ratified by a national referendum).
Amar’s argument is laid out in Akhil Reed Amar, The Consent of the Governed:
Constitutional Amendment Outside Article V, 94 C
OLUM. L. REV. 457 (1994) and Akhil
Reed Amar, Philadelphia Revisited: Amending the Constitution Outside Article V, 55
U.
CHI. L. REV. 1043 (1988).
11. See LEVINSON, supra note 1, at 167–68 (listing the author’s principal
grievances with the Constitution).
12. Id. at 23.
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informal amendment process off the table so easily. The problem with
Levinson’s argument is that it ignores the ways in which the informal
amendment process is linked to the formal amendment process.
Eliminating the “kryptonite-like bars” of Article V might well undermine
the informal amendment process in ways we would find significant if we are
fans of the latter.
The argument rests on a hydraulics metaphor. If we assume there
exists an impulse for constitutional reform, Levinson’s argument could not
be more straightforward. Article V has blocked our constitutional reform
energies, preventing their release, and he wants to throw open the gate and
allow those impulses to take their most natural path—formal constitutional
amendment. What I want to suggest, in contrast, is that by blocking most
formal amendments, Article V effectively redirects those constitutional
energies into different, potentially more productive channels.
13
If there are
benefits to channeling constitutional discourse through the informal
amendment process, then the case for a constitutional convention is more
complex than Levinson presents.
This is not, then, an argument about the unexpected consequences of
tinkering with the constitutional text;
14
for these purposes I am willing to
stipulate that all the fixes Levinson seeks will emerge from his imagined
13. Donald Lutz has found modest indirect evidence for the idea that a
difficult formal amendment process is correlated with an informal process of revision
dominated by the judiciary. Donald S. Lutz, Toward a Theory of Constitutional
Amendment, 88 A
M. POL. SCI. REV. 355 (1994); see also Adrian Vermeule,
Constitutional Amendments and the Constitutional Common Law 19 (Univ. of Chi.
Pub. Law & Legal Theory, Working Paper No. 73, 2004), available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=590341 (“The alternative to
constitutional amendment is not, as generic arguments often imply, a stable
subconstitutional order; the alternative is continual judicial updating of the
Constitution through flexible common law constitutionalism”); id. at 24 (“the
amendment process” and “judge-made constitutional law” are “at least partial
substitutes”).
14. Adrian Vermeule has questioned whether Levinson’s imagined
constitutional convention would succeed. He notes that many of the constitutional
provisions Levinson wishes to amend represent strategies to offset other problems that
Levinson identifies and asks whether one can reasonably expect a first-best
constitutional scheme to emerge from a convention. Adrian Vermeule, Second-Best
Democracy, 1 H
ARV. L. & POL’Y REV. (Online) (Dec. 4, 2006),
http://www.hlpronline.com/2006/11/vermeule_01.html. For a good example of this line
of argument generally, see Kathleen M. Sullivan, What’s Wrong with Constitutional
Amendments?, in G
REAT AND EXTRAORDINARY OCCASIONS: DEVELOPING
GUIDELINES FOR CONSTITUTIONAL CHANGE 39 (1999). For a critique of the generic
argument, see Vermeule, supra note 13, at 18–39.
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928 Drake Law Review [Vol. 55
constitutional convention. This is not an argument designed to resist
Levinson’s central premise;
15
like Levinson’s thesis, my argument begins
with the assumption that some parts of the Constitution—though perhaps
not the ones he identifies
16
—are all but impossible to change save through
formal amendment. Nor is this an effort to quibble with Levinson’s claims
about the problems with the current scheme, though I have quibbles
aplenty. The point of this Article is simply that, even taking Levinson’s
arguments on their own terms, Levinson does not give us a full accounting
of the costs of his proposal—those that stem from redirecting our reform
impulses into formal rather than informal channels. And because there are
many things we might like about the process of informal constitutional
amendment—including the fact that it helps ensure the ongoing
contestability of constitutional law—Levinson’s omission is worth noting.
Put more simply, despite the existence of a constitutional text, a
surprising amount of American constitutionalism bears a close
resemblance to Great Britain’s textless constitutionalism.
17
For those
instances when it does not—when a textual commitment makes it difficult
for constitutional meaning to adapt—Levinson suggests we turn to the
French model, which involves semi-regular constitutional redrafting. What
I suggest here is that if we think there is anything to admire in the British
process, moving to the French model may undermine it.
One caveat is in order. What I offer here is not only an abbreviated
sketch of the values associated with the informal amendment process, but a
utopian one. Because Levinson has offered us a utopian vision about the
way the formal amendment process will work, I sketch the opposite
extreme. My point, of course, is not that my utopian vision is the right one
(or that its non-ideal version is superior in practice to a non-ideal formal
amendment process).
18
I simply want to suggest that the truth lies
somewhere in between our two accounts.
15. David Strauss has certainly made a strong case for rejecting this premise.
See, e.g., David A. Strauss, The Irrelevance of Constitutional Amendments, 114 H
ARV.
L. REV. 1457 (2001). But see Vermeule, supra note 13, at 53–54 (“Amendments can
and often do sharply constrain interpretation within certain boundaries”) (citation
omitted).
16. I suspect, for instance, that Article II is general enough to be susceptible
to informal amendment strategies.
17. See David A. Strauss, Common Law Constitutional Interpretation, 63 U.
CHI. L. REV. 877 (1996) (discussing the prevalence of extra-constitutional principles in
American constitutionalism).
18. For an example of this type of comparative assessment see Vermeule,
supra note 13 (comparing formal amendments to judicial updating).
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Part I explains what I mean by the phrase “informal amendment
process.” Part II sketches a few reasons why we might value the informal
amendment process, dwelling in particular on the fact that it helps ensure
the ongoing contestability of constitutional law. Because it is hard for
judges to define the precise content of informal amendments and even
harder for judges to acknowledge their existence, informal amendments
occupy an odd constitutional status. They make it hard for anyone to claim
access to an authentic account of constitutional meaning. Informal
amendments thus “problematize” constitutional debates in the same way
that Bruce Ackerman claims that the separation of powers “problematizes”
representation.
19
Just as the existence of other representative institutions
makes it difficult for any branch to claim to be the authentic voice of the
People, so too do the vagueness and quasi-illicit status of informal
amendments make it difficult for anyone to claim unique access to the
“right” understanding of the Constitution. And we might value the fact
that constitutional law remains contested and contestable for many
reasons, including some that ought to appeal to Levinson himself.
II.
THE PROCESS OF INFORMAL CONSTITUTIONAL AMENDMENT
Anyone who was awake in law school is aware that constitutional
meaning has evolved over time even as the text has not. The most widely
recognized means for effecting that change is, of course, judicial
interpretation. While there has long been a merry war between
protagonists of the “living Constitution” and self-described “originalists” as
to whether it is legitimate for constitutional meaning to evolve this way,
20
I
take it that no one doubts that it has done so.
In recent years,
21
we have seen the emergence of more ambitious and
complex accounts of what I refer to as “the informal amendment
process”—the alteration of constitutional meaning in the absence of textual
change.
22
While it is exceedingly difficult to divide this work into neat
19. See infra text accompanying notes 76–77.
20. It would, of course, be impossible to do justice to this long-standing
debate in a footnote. For a useful primer, see Barry Friedman & Scott B. Smith, The
Sedimentary Constitution, 147 U. P
A. L. REV. 1 (1998).
21. “Recent” is a relative term, as several scholars have traced these
movements at least back to Karl Llewellyn. See, e.g., Ernest A. Young, The
Constitution Outside the Constitution, 117 Y
ALE L.J. (forthcoming Dec. 2007).
22. Only some of this work is explicitly devoted to the informal amendment
process. The work of Reva Siegel and Robert Post, cited infra notes 26 & 27, for
instance, focuses on the ways social movements and other socio-political forces shape
constitutional culture, a question that may or may not involve informal amendment.
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930 Drake Law Review [Vol. 55
categories,
23
these accounts go beyond the notion that the Constitution
must be updated by judges to keep pace with current events, which is the
premise underlying much work on the “living Constitution.” Though these
scholars generally acknowledge a judicial role, they suggest that the
evolution of constitutional meaning is a richer, more complex project than
one in which judges self-consciously adapt broad constitutional mandates
to new circumstances. On many of these accounts, while judges often
acquiesce to or unconsciously incorporate constitutional change, the real
work of amendment is done largely by nonjudicial actors.
Bruce Ackerman’s notion of “constitutional moments” is the best
known account of the informal amendment process.
24
But competing
examples abound in the work of Bill Eskridge and John Ferejohn,
25
Reva
Siegel,
26
Robert Post,
27
Larry Kramer,
28
Jack Balkin,
29
Neal Devins and
For a useful discussion of this distinction, see Reva B. Siegel, Text in Contest: Gender
and the Constitution from a Social Movement Perspective, 150 U. P
A. L. REV. 297, 302–
03 (2001) [hereinafter Siegel, Text in Contest].
23. The rough dividing line I have in mind is something like this: The “living
Constitution” scholars tend to focus mostly on the courts and imagine that judges will
self-consciously update the Constitution in light of evolving societal norms. Scholars of
the “informal amendment process” envision a process that is generally less court-
centered, and their treatment of the judicial role tends to be heavily dependent on
sociological, social-psychological, or hermeneutic accounts. Even with this rough cut it
would be difficult to place scholars neatly in one camp or another, and there are
certainly other useful ways to describe the differences in these two lines of scholarship.
Levinson himself, for instance, offers a distinction between “interpretation” and
“amendment,” while “cheerfully conced[ing] serious doubt that anyone can supply
formal criteria by which to distinguish the two.” Sanford Levinson, How Many Times
Has the United States Constitution Been Amended? (A) < 26; (B) 26; (C) 27; (D) > 27:
Accounting for Constitutional Change, in R
ESPONDING TO IMPERFECTION: THE
THEORY AND PRACTICE OF CONSTITUTIONAL AMENDMENT 13, 33 (Sanford Levinson
ed., 1995). Similarly, Keith Whittington maps constitutional deliberation along a
continuum that includes interpretation, construction, and creation. K
EITH E.
WHITTINGTON, CONSTITUTIONAL CONSTRUCTION: DIVIDED POWERS AND
CONSTITUTIONAL MEANING 4 (1999).
24. See generally BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1991)
[hereinafter A
CKERMAN, FOUNDATIONS]; BRUCE ACKERMAN, WE THE PEOPLE:
TRANSFORMATIONS (1998) [hereinafter ACKERMAN, TRANSFORMATIONS]; Bruce
Ackerman, The Living Constitution, 120 H
ARV. L. REV. 1737 (2007).
25. William N. Eskridge & John Ferejohn, Super-Statutes, 50 DUKE L.J. 1215
(2001).
26. See, e.g., Jack M. Balkin & Reva B. Siegel, Principles, Practices, and Social
Movements, 154 U.
PA. L. REV. 927 (2006); Robert C. Post & Reva B. Siegel,
Legislative Constitutionalism and Section Five Power: Policentric Interpretation of the
Family and Medical Leave Act, 112 Y
ALE L.J. 1943 (2003) [hereinafter Post & Siegel,
Legislative Constitutionalism]; Robert C. Post & Reva B. Siegel, Protecting the
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Louis Fisher,
30
Stephen Griffin,
31
Mark Tushnet,
32
Barry Friedman,
33
and
Sandy Levinson himself,
34
just to name a few of the most influential
scholars to have written in this area.
35
We even see discussions of the
Constitution from the People: Juricentric Restrictions on Section Five Power, 78 IND. L.
J. 1 (2003); Robert C. Post & Reva B. Siegel, Roe Rage: Democratic Constitutionalism
and Backlash (42 H
ARV. C.R.-C.L. L. REV., Working Paper No. 131, forthcoming
2007), available at http://www.papers.ssrn.com/sol3/papers.cfm?abstract_id=990968
[hereinafter Post & Siegel, Roe Rage]; Reva B. Siegel, Constitutional Culture, Social
Movement Conflict and Constitutional Change: The Case of the de facto ERA, 94 C
AL.
L. REV. 1323 (2006) [hereinafter Siegel, de facto ERA]; Siegel, Text in Context, supra
note 22, at 302–03.
27. See, e.g., Robert C. Post, The Supreme Court, 2000 Term—Foreword:
Fashioning the Legal Constitution: Culture, Courts, and Law, 117 H
ARV. L. REV. 4, 8
(2002); see also sources cited supra note 26.
28. See, e.g., LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR
CONSTITUTIONALISM AND JUDICIAL REVIEW (2004); Larry D. Kramer, Popular
Constitutionalism, Circa 2004, 92 C
AL. L. REV. 959 (2004) [hereinafter Kramer, Circa
2004].
29. See, e.g., Jack M. Balkin, Populism and Progressivism as Constitutional
Categories, 104 Y
ALE L.J. 1935 (1995) (reviewing CASS R. SUNSTEIN, DEMOCRACY
AND THE
PROBLEM OF FREE SPEECH (1993)); Jack M. Balkin & Sanford Levinson, The
Canons of Constitutional Law, 111 H
ARV. L. REV. 963 (1998); Jack M. Balkin &
Sanford V. Levinson, The Processes of Constitutional Change: From Partisan
Entrenchment to the National Surveillance State (Yale Law Sch., Working Paper No.
120, 2006), available at http://ssrn.com/sol3/papers.cfm?abstract_id=930514 [hereinafter
Balkin & Levinson, Processes]; Jack M. Balkin, Respect-Worthy: Frank Michelman and
the Legitimate Constitution, 39 T
ULSA L. REV. 485 (2004) [hereinafter Balkin, Respect-
Worthy]; Jack M. Balkin & Sanford Levinson, Understanding the Constitutional
Revolution, 87 V
A. L. REV. 1045 (2001) [hereinafter Balkin & Levinson, Constitutional
Revolution]; Balkin & Siegel, supra note 26.
30. See, e.g., NEAL DEVINS & LOUIS FISHER, THE DEMOCRATIC
CONSTITUTION (2004).
31. See, e.g., STEPHEN M. GRIFFIN, AMERICAN CONSTITUTIONALISM: FROM
THEORY TO POLITICS (1996).
32. See, e.g., MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE
COURTS (1999) [hereinafter TUSHNET, AWAY FROM THE COURTS]; MARK TUSHNET,
THE NEW CONSTITUTIONAL ORDER (2003) [hereinafter TUSHNET, CONSTITUTIONAL
ORDER].
33. Barry Friedman, Mediated Popular Constitutionalism, 101 MICH. L. REV.
2596 (2003); Friedman & Smith, supra note 20.
34. See sources cited supra note 29.
35. For these purposes, I exclude the work of scholars like Robin West, who
shares many of the commitments of the scholars above but resists the normative claim
that we should frame important moral debates in constitutional terms. See, e.g., Robin
West, Constitutional Culture or Ordinary Politics: A Reply to Reva Siegel, 94 C
AL. L.
REV. 1465 (2006) [hereinafter West, Constitutional Culture]; Robin West, Katrina, the
Constitution, and the Legal Question Doctrine, 81 C
HI.-KENT L. REV. 1127 (2006).
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932 Drake Law Review [Vol. 55
informal amendment process in the work of scholars like Keith
Whittington,
36
who began his career writing about originalism;
37
David
Strauss,
38
whose emphasis on the judicial role in changing constitutional
meaning distances him from many of the authors cited above; and Akhil
Amar,
39
well known for his “intratextualist” approach.
40
Perhaps signaling
that the end of the world is nigh, even Ernie Young—a self-proclaimed
member of the “law and law” movement—is publishing a piece on “The
Constitution Outside the Constitution” in the Yale Law Journal this fall.
41
It is, of course, terribly imprecise to lump all of these ideas into a
single category given the marked differences among them. While virtually
all of the scholarship on the informal amendment process focuses on the
complex interaction between popular energies and institutional actors, the
work is differently inflected. Some of this scholarship places emphasis on
the role of the people, particularly the role of social movements, in
changing constitutional meaning;
42
other work highlights the role
institutions and elites play in shaping our understanding of the
Constitution.
43
Some of this work is primarily descriptive;
44
other work has
a substantial normative component.
45
Some of this work retains the focus
36. Keith E. Whittington, Extrajudicial Constitutional Interpretation: Three
Objections and Responses, 80 N.C. L. R
EV. 773 (2002) [hereinafter Whittington,
Extrajudicial Interpretation]; W
HITTINGTON, supra note 23.
37. KEITH E. WHITTINGTON, CONSTITUTIONAL INTERPRETATION: TEXTUAL
MEANING, ORIGINAL INTENT, AND JUDICIAL REVIEW (1999).
38. Strauss, supra note 15; Strauss, supra note 17. Strauss is often excluded
from this cohort because he emphasizes the judicial role in shaping constitutional
meaning, whereas most of the other scholars in this cohort tend to downplay or resist
that role. See, e.g., Siegel, Text in Contest, supra note 22, at 297–301. Strauss’s analysis
of the relationship between socio-cultural change and judicial incorporation is what
matters for these purposes, however, and this scholarly division about the precise
nature of the judicial role is a subsidiary issue.
39. In addition to his well-known work on amendment outside of Article V—
see sources cited supra note 10—Amar is in the process of writing a book entitled
America’s Unwritten Constitution: Between the Lines and Beyond the Text.
40. Akhil Reed Amar, Intratextualism, 112 HARV. L. REV. 747 (1999).
41. Young, supra note 21. Young’s project is quite different from many of
those identified above. He defines the Constitution in functional rather than formal
terms, decoupling the Constitution’s entrenchment function for its constitutive and
rights-conferring functions. Id.
42. See, e.g., sources cited supra notes 26–27.
43. See, e.g., sources cited supra note 24.
44. See, e.g., Balkin & Levinson, Constitutional Revolution, supra note 29;
Siegel, de facto ERA, supra note 26.
45. See, e.g., sources cited supra notes 24–25. Some authors have written in
GERKEN 9.0 9/17/2007 12:21:17 PM
2007] A Skeptical Response to Our Undemocratic Constitution 933
on courts that was the hallmark of earlier scholarship on the “living
Constitution,”
46
whereas others reject this perspective as “juricentric.”
47
Some of this work is devoted to a different conversation than this one:
much of this work focuses on whether the Court should be the exclusive
interpreter of the Constitution.
48
For these purposes, however, what matters is that: (1) these disparate
accounts are united by a view that constitutional change often does take
place outside of Article V; and (2) there are enough common descriptive
threads within this body of scholarship that we can generalize a bit about
what the informal amendment process looks like in practice.
III.
THE BENEFITS OF INFORMAL AMENDMENT
Once we have a sense of what the informal amendment process
involves, we can turn to this Article’s central thesis about the relationship
between the formal and informal amendment processes. The simple point
of my hydraulics argument is that an informal amendment process exists
because formal amendment is so difficult. If we could simply rewrite the
Constitution whenever we thought circumstances demanded a change, why
would we bother with the difficult and complex task of doing so through
informal means? Levinson, of course, acknowledges the existence of the
informal process but never considers the causal relationship between his
main complaint—the blockage of the formal process—and the prevalence
of the informal process.
49
If Levinson succeeds in what I take to be his real
task—making the constitutional convention a more routine or easier path
for constitutional change—I suspect we will see less political energy
devoted to informally amending the Constitution. And if there is reason to
value informal outlets over the formal one, then Levinson has not offered
us a full accounting of the costs and benefits of his approach. For this
reason, even someone who agrees with Levinson’s arguments on the
immutable portions of the Constitution might not think that the formal
amendment game is worth the candle.
both veins. Compare TUSHNET, AWAY FROM THE COURTS, supra note 32, with
T
USHNET, CONSTITUTIONAL ORDER, supra note 32.
46. The work of David Strauss fits in this category. See supra notes 15, 17.
47. See, e.g., Siegel, Text in Contest, supra note 22, at 299.
48. See discussion supra notes 38. For an elegant synthesis of this line of
scholarship, see Kramer, Circa 2004, supra note 28.
49. Levinson recognizes a link between the two, arguing that the informal
amendment process has arisen in response to the difficulties involved in formal
amendment, but otherwise does not dwell on the informal amendment process or the
effects his proposals might have upon it. L
EVINSON, supra note 1, at 164.
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934 Drake Law Review [Vol. 55
Having already indulged in some egregious lumping by grouping
these varied accounts of informal amendment together under a single
heading, let me offer a few equally egregious generalizations about why we
might value that process and thus lose something important should we
heed Levinson’s prescriptions. It would, of course, be impossible to
describe all of the costs and benefits of informal amendment in a full-blown
article, let alone a short commentary. For this reason, I am merely going to
sketch two major sets of reasons the literature already offers as to why we
might value the informal amendment process in Part II.A. and then
speculate as to one underappreciated reason for valuing it in Part II.B.
Before turning to these arguments, let me emphasize again that many
important distinctions will necessarily be ignored or elided in the brief
analysis that follows. For instance, we might think that the claims below
are more or less convincing for those parts of the Constitution dealing with
rights rather than structure or standards rather than rules. Or we might
prefer some paths for informal amendment over others—for instance, we
might disfavor judicial appointments as a strategy for change, or we might
prefer informal amendments that are effected primarily through
representative/law-making institutions rather than professionalized/law-
interpreting ones. These and other debates have been canvassed elsewhere
in detail and I do not address them here.
A. Common Threads in the Literature
One obvious reason that we might value the informal amendment
process is that constitutional meaning emerges out of a dialogic process
that involves popular mobilization and interinstitutional debate. Informal
amendments are unlikely to stick, of course, without such a process.
50
It is
thus not surprising that institutional conflict and popular mobilization are
central to many accounts of the informal amendment process. For
instance, Bruce Ackerman’s account of constitutional moments famously
requires a clash among national institutions to tee up an issue, followed by
a national election to serve as a referendum on it.
51
Bill Eskridge and John
Ferejohn, who have argued that constitutional meaning is shaped by what
50. Cf. WHITTINGTON, supra note 23, at 219–23.
51. See ACKERMAN, TRANSFORMATIONS, supra note 24, at 20 (arguing that
the informal amendment process involves five steps: “Constitutional Impasse →
Electoral Mandate → Challenge to Dissenting Institutions → Switch in Time →
Consolidating Election”). Ackerman has now restated that test in the more general
terms of “signaling, proposing, triggering, ratifying, and finally consolidating”.
Ackerman, The Living Constitution, supra note 24, at 1762.
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2007] A Skeptical Response to Our Undemocratic Constitution 935
they term “super-statutes,”
52
note that they are generated by a “long
deliberative history, repeated endorsement by differently constituted
legislatures, multiple opportunities for critique and public feedback,” and
“strong connection to the people and popular needs.”
53
Similarly, if one looks to the work analyzing the ways in which social
movements shape constitutional meaning, we see a process that involves
many people hashing out these questions in many institutional contexts.
Siegel, for instance, insists that the “field of constitutional culture” includes
“the formal and informal interactions between citizens and officials that
guide constitutional change,” including “lawmaking and adjudication,
confirmation hearings, ordinary legislation, failed amendments, campaigns
for elective office, and protest marches.”
54
Balkin and Levinson describe
the role that parties play in helping to “collect, filter, co-opt and
accumulate the constitutional beliefs and aspirations of the party faithful,
of prospective voters, and, perhaps equally crucially, of social
movements.”
55
A second reason one might prefer informal to formal amendment is
that change takes place through the process of accretion, an idea nicely
captured by Barry Friedman and Scott Smith’s metaphor of the
“sedimentary constitution.”
56
Change is recorded over time and across
factual scenarios instead of encapsulated within a thin textual reference.
For instance, Siegel and Post detail the ways in which movements and
counter-movements interact over time to forge constitutional meaning.
57
Jack Balkin and Levinson criticize Ackerman’s idea of constitutional
moments and argue that a constitutional revolution can be effected over
52. A “super-statute,” write Eskridge and Ferejohn, is “a law or series of laws
that (1) seeks to establish a new normative or institutional framework for state policy
and (2) over time does ‘stick’ in the public culture such that (3) the super-statute and
its institutional or normative principles have a broad effect on the law . . . .” Eskridge
& Ferejohn, supra note 25, at 1216. According to Eskridge and Ferejohn, “super-
statutes” should enjoy a “quasi-constitutional status.” Id. at 1274.
53. Id. at 1273, 1276; see also Friedman & Smith, supra note 20, at 63–66.
54. Siegel, de facto ERA, supra note 26, at 1324–25; see also Balkin & Siegel,
supra note 26, 946–50.
55. Balkin & Levinson, Constitutional Revolution, supra note 29, at 1077; see
also Balkin & Levinson, Processes, supra note 29, at 109–12 (describing other
institutional channels in which constitutional meaning is shaped).
56. Friedman & Smith, supra note 20, at 6; see also WHITTINGTON, supra note
23, at 314–15; Strauss, supra note 15.
57. See, e.g., Siegel, de facto ERA, supra note 26; Post & Siegel, Roe Rage,
supra note 26.
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936 Drake Law Review [Vol. 55
many years through “partisan entrenchment.”
58
In arguing that their
account of “super-statutes” is more normatively attractive than
Ackerman’s constitutional moments thesis, Eskridge and Ferejohn claim
that “[a] super-statute is not a moment, nor is it even a series of moments.
Rather, it is a continuing process of deliberation, consensus-building as to
some issues, conflict as to other issues.”
59
Similarly, David Strauss—also
distinguishing himself from Ackerman—argues that “[t]he people rule not
through discrete, climactic, political acts like formal constitutional
amendments, but in a different way—often simply through the way they
run their nonpolitical lives, sometimes combined with sustained political
activity spread over a generation or more.”
60
Many of these scholars contrast their approaches with Ackerman’s
theory of constitutional moments. But even Ackerman’s constitutional
moments require debate to take place over an extended period of time.
“[P]opular sovereignty,” he writes, “is not a matter of a single moment; it is
a sustained process that passes through a series of stages—from the
signaling phase through culminating acts of popular decision to
consolidation.”
61
Informal amendment thus shares some of the strengths
commonly attributed to common law judging, such as those having to do
with contextualized decisionmaking and repeat encounters with a similar
problem over time.
One might well argue that at least some of these values could emerge
from the Article V process itself. Indeed, John Ferejohn and Larry Sager
praise the Article V process on some of these grounds:
[T]he effort to mobilize geographically far-flung majorities [to amend
the constitution] will require a sustained effort over a substantial
period of time. The effort to court support or opposition in diverse
political environments will select arguments most likely to succeed in
those environments. The diversity of perspective thus inspired will, it
can reasonably be hoped, deepen the national debate by pushing
toward grounds of abstract principle and away from more
particularistic considerations.
62
58. Balkin & Levinson, Constitutional Revolution, supra note 29, at 1066–78,
1082.
59. Eskridge & Ferejohn, supra note 25, at 1271.
60. Strauss, supra note 15, at 1505; see also Strauss, supra note 17, at 905.
61. Ackerman, The Living Constitution, supra note 24, at 1807.
62. John Ferejohn & Lawrence Sager, Commitment and Constitutionalism, 81
T
EX. L. REV. 1929, 1957–58 (2003); see also Vermeule, supra note 13, at 47–49. Indeed,
Ferejohn and Sager draw an explicit connection between their account and that of
GERKEN 9.0 9/17/2007 12:21:17 PM
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Amendment through the Article V process, however, is not what
Levinson really wants.
63
And if, consistent with Levinson’s proposal, we
create an amendment process that makes it easier to fix the Constitution,
the hydraulics of constitutional reform will redirect our energies through
that easy-to-traverse formal process rather than arduous informal paths
that have arguably channeled the bulk of constitutional change during the
last century.
B. The Ongoing Contestability of Constitutional Law
Finally, even if Levinson could concoct a formal amendment process
that was as normatively attractive as the informal amendment process
along the lines sketched above, there may nonetheless be something
distinctive about the informal amendment process that we might regret
losing. In this regard, let me speculate as to one final reason we might
value informal over formal amendments that holds even if Levinson’s new
and improved Article V can offer us many of the same benefits that the
informal amendment process now provides: an informally amended
Constitution ensures the ongoing contestability of constitutional law.
64
The ongoing contestability of constitutional law stems from the
combined effect of two oddities that the informal amendment process
generates. The first oddity is that informal amendments are exceedingly
hard to define. One of the central problems for those scholars developing
a normative account of the informal amendment process—those who want
to entrench a particular commitment against ordinary political change—is
identifying a “rule of recognition.”
65
If amendment takes place informally
Ackerman. Ferejohn & Sager, supra at 1958.
63. See supra text accompanying notes 4–12.
64. In his thought-provoking book, Michael Seidman has argued in favor of
an “unsettled Constitution” and has detailed why we ought to value constitutional
law’s ability to upset political settlements. See L.
MICHAEL SEIDMAN, OUR
UNSETTLED CONSTITUTION: A NEW DEFENSE OF CONSTITUTIONALISM AND JUDICIAL
REVIEW (2001). Although I suspect he thinks there is less constitutional “settlement”
than I do, see id. 86–108, several of the arguments discussed below limn themes similar
to those developed in his book. For other analyses of these themes, see Barry
Friedman, Dialogue and Judicial Review, 91 M
ICH. L. REV. 577 (1993); Glenn H.
Reynolds, Chaos and the Court, 91 C
OLUM. L. REV. 110, 112–15 (1991); infra text
accompanying notes 79–90. For a thought-provoking exchange on the relationship
between constitutional disagreement and constitutional legitimacy, compare Frank I.
Michelman, Ida’s Way: Constructing the Respect-Worthy Governmental System, 72
F
ORDHAM L. REV. 345 (2003) with Balkin, Respect-Worthy, supra note 29.
65. See, e.g., ACKERMAN, TRANSFORMATIONS, supra note 24, at 91; Eskridge
& Ferejohn, supra note 25, at 1266, 1275–76.
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938 Drake Law Review [Vol. 55
and is not embodied in an agreed-upon textual reference, how do we figure
out the difference between an enduring shift in constitutional meaning and
the product of ordinary politics?
Moreover, even if we can identify when an amendment has occurred,
it is still difficult to know the precise content of the amendment. The kinds
of constitutional commitments created by the informal amendment process
may be quite difficult to distill into thin textual references.
66
For instance,
if we think that the New Deal represented a constitutional moment, how
precisely would we reduce the “New Deal deal” into few sentences?
67
At
least on most accounts, informal amendments involve many authors
engaged with many facts giving many reasons. We may even do an
injustice to our constitutional commitments if we reduce them to what one
of my colleagues has termed “lapidary constitutional amendments that
state formulae.”
68
The second oddity about informal amendments is that constitutional
meaning routinely changes, yet common understandings of the
Constitution remain tied to the idea of a fixed text. The root cause of this
oddity is the source of the hydraulics process itself: the rigidity of Article V
makes the text seem inalterable (and thus sacred) while ensuring that the
text matters a great deal less than one might think.
69
66. Cf. Vermeule, supra note 13, at 22.
67. See, e.g., Strauss, supra note 15, at 1504 (“[T]hese forms of popular rule . .
. do not provide a canonical text to be scrutinized and interpreted.”). To be fair to
several of the authors lumped herein, I should emphasize again that many consider
their claims to be descriptive, not normative, and thus have no need to devise a rule of
recognition. See, e.g., supra note 44 and accompanying text; Siegel, de facto ERA,
supra note 26, at 1328 (“The account this Lecture offers is positive, not normative. The
Lectures considers how movements can change the Constitution’s meaning outside
Article V—not whether they should.”). Others privilege functional over formal
analysis and thus can similarly dispense with a rule of recognition. See, e.g., Young,
supra note 21.
68. Thanks to Bruce Ackerman for suggesting this formulation. But see
Vermeule, supra note 13, at 22 (arguing that there are costs to what he terms a “prolix
informal constitutional code” and insisting that “[a] complex society will produce
complex constitutional law; the only real question is whether it is good to outsource
constitutional complexity from the amendment process to the adjudicative process.”).
69. Cf. Friedman & Smith, supra note 20, at 45 (“The struggle over the
question of when and whether the Constitution may be ‘amended’ outside of Article V
betrays the great force that the ‘written-ness’ of our Constitution has upon our
interpretation of it.” (footnote omitted)). Based on his comparative empirical work on
the amendment process, Donald Lutz hints that there may be a relationship between
these two phenomena. He notes that “the length of a constitution and the difficulty of
amendment may be related to the relative presence of an attitude that views the
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It is easy to see the dilemma that this phenomenon poses for judges.
If, as Ernie Young observes, the idea of an unchanging constitutional text
“contribute[s] to the almost mystical pull that the Constitution exerts on
most Americans,”
70
even judges who are self-consciously trying to
incorporate informal amendment can give them only begrudging
acceptance.
71
Indeed, precisely because the popular conception of
constitutional interpretation is that it is a text we are expounding, judges
often incorporate informal amendments into judicial decisions quietly and
without acknowledgment, as if (as many maintain) the process of doing so
is illicit.
The quasi-illicit status of constitutional amendment, combined with
the difficulties inherent in devising a rule of recognition for informal
amendments, means that informal amendments occupy an exceedingly odd
status in our constitutional discourse. Judges are a bit embarrassed about
acknowledging informal amendments, and it is hard to figure out their
precise content.
One might wonder at this stage of the argument what, precisely, these
claims have to do with my goal of sketching the affirmative case for the
informal amendment process. What, after all, can be said in favor of
vaguely defined amendments that are imported begrudgingly into
constitutional analysis? Are these not the reasons we ought to prefer
formal, textual changes to informal amendments?
72
Perhaps. But the combined effect of these two oddities upon our
constitutional discourse is that they ensure the ongoing contestability of
constitutional law.
73
An informal amendment process like our own makes
constitution as a higher law rather than as a receptacle for normal legislation” and that
“the great difficulty faced in amending the U.S. Constitution” might lead to greater
reliance on judicial review as an informal amendment strategy. Lutz, supra note 13, at
364.
70. Young, supra note 21.
71. On some accounts, of course, culture influences judges in ways that
prevent a judge from being aware of the incorporation process.
72. Though Levinson does not engage with this precise question, he does note
that the central problem with the informal amendment process is its lack of
transparency. L
EVINSON, supra note 1, at 164.
73. The idea that the ongoing contestability of constitutional law is a good
thing runs contrary, of course, to a deeply felt and widely supported view in the
academy about “the settlement function of the law.” For the leading exposition, see
Larry Alexander & Frederick Schauer, On Extrajudicial Constitutional Interpretation,
110 H
ARV. L. REV. 1359, 1371 (1997). Witness, for instance, the skirmish over this
issue that has taken place in the debate over judicial supremacy. Even those who wish
to challenge judicial supremacy tend to take a defensive posture about settlement
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940 Drake Law Review [Vol. 55
it quite difficult for anyone to claim access to an authentic account of
constitutional meaning. Not only do informal amendments all but defy
efforts to pin down their meaning, but their quasi-illicit constitutional
status means that judges are reluctant to acknowledge them even when we
can discern their basic outlines. The result is that it is very hard for anyone
credibly to claim unique access to the right answer.
Put differently, as the very premise of Levinson’s argument suggests,
whether or not rights are trumps, clear textual commitments tend to be.
74
The further we travel down Levinson’s path—the more often we pin down
precisely what kind of constitutional bargain is struck—the less
contestation we will have over constitutional meaning. The informal
amendment process is a settlement of sorts, at least on most accounts. But
the settlement seems likely to be contestable around the edges, precisely
because it is so difficult to discern its contours. (One might argue that this
is equally true of general textual references,
75
but I assume here that an
easier formal amendment process will result in a series of narrowly drawn
constitutional fixes rather than a large increase in general textual
commitments—that is, I anticipate a revised Constitution that looks more
like a statute than a Bill of Rights). When one adds to the mix the fact that
these ill-defined constitutional moments are difficult to acknowledge, we
have a constitutional discourse that makes it hard to make a credible claim
of certainty.
In this fashion, informal amendments generate the juridical cognate
to Bruce Ackerman’s claim that the separation of powers “problematizes
representation.”
76
In Ackerman’s view, the fact that the House, the Senate,
and the Presidency represent the people in different ways prevents any
branch from claiming to be the authentic voice of the People.
77
rather than offering a full-throated cry for the virtues associated with its absence. See,
e.g., Kramer, Circa 2004, supra note 28, at 987–90; Whittington, Extrajudicial
Interpretation, supra note 36, at 786–808. But see sources cited supra note 62; infra note
79–90.
74. Adrian Vermeule agrees as to the empirics but disagrees as to whether
this might be a virtue. See Vermeule, supra note 13, at 49, 53. For an argument from a
scholar with quite different sensibilities from Vermeule’s that also suggests the costs
associated with this idea, see West, Constitutional Culture, supra note 35, at 1483.
75. See Strauss, supra note 17, at 912.
76. ACKERMAN, FOUNDATIONS, supra note 24, at 181–86. For an insightful
paper suggesting that representative government itself prevents such claims, see Bryan
Garsten, Representative Government and Popular Sovereignty, in R
EPRESENTATION
AND
POPULAR RULE (Shapiro et al. eds., forthcoming 2008) available at
http://www.brown.edu/Research/ppw/files/Rep_%20Govt_&_Pop_Sov.pdf.
77. ACKERMAN, FOUNDATIONS, supra note 24, at 184–86.
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Informal amendments similarly problematize constitutional discourse.
The temptation to claim unique access to constitutional meaning will
always be strong.
78
But in the vast area governed by informal amendments,
even judges willing to admit that informal amendments occur will find it
difficult to pin down precisely what they mean. Credible claims of
certainty are thus hard to come by for informal amendments. And that
means that much of constitutional law will remain contested and
contestable.
There are also reasons one might value the ongoing contestability of
constitutional law. One might value it because we believe in a minimalist
approach to judging that leaves as much room as possible for democratic
debate
79
or experimentation.
80
We might value the ongoing contestability
of constitutional law because we are as suspicious about claims about what
the Constitution says
81
as we are about claims about what the People
want.
82
We might simply subscribe to an agonistic conception of politics.
83
One of the most intriguing reasons for valuing the ongoing
contestability of constitutional law is the possibility that it creates space for
citizens to participate in shaping constitutional meaning. In the words of
Reva Siegel, “a system that permanently resolves the Constitution’s
meaning risks permanently estranging groups in ways that a system
enabling a perpetual quest to shape constitutional meaning does not.”
84
78. See, e.g., WHITTINGTON, supra note 23, at 213 (concluding from a set of
historical case studies that there “was always an advantage in claiming to be an
advocate of true constitutional meaning.”).
79. See, e.g., CASS R. SUNSTEIN, ONE CASE AT A TIME: JUDICIAL
MINIMALISM ON THE SUPREME COURT 3–23 (1999) (making the case for minimalist
judicial decisionmaking on several related grounds). Sunstein summarizes this
approach as “leaving as much as possible undecided.” Id. at 3.
80. See, e.g., Whittington, Extrajudicial Interpretation, supra note 36, at 791
(“It is sometimes better for constitutional rules to be relatively unsettled because it can
foster socially beneficial experimentation and allow political diversity.”).
81. Mark Tushnet’s work, for instance, is informed by this sensibility. See
T
USHNET, CONSTITUTIONAL ORDER, supra note 32, at ix (acknowledging its influence
upon his work).
82. Cf. ACKERMAN, FOUNDATIONS, supra note 24, at 184–86.
83. See, e.g., HANNAH ARENDT, THE HUMAN CONDITION (1958); BONNIE
HONIG, POLITICAL THEORY AND THE DISPLACEMENT OF POLITICS (1993); CHANTAL
MOUFFE, DELIBERATIVE DEMOCRACY OR AGONISTIC PLURALISM (2000).
84. Siegel, de facto ERA, supra note 26, at 1328. Siegel and Robert Post have
recently proposed a framework for thinking about “how our constitutional order
actually negotiates the tension between the rule of law and self-governance,” using Roe
as a case study for analyzing how various practices “facilitate an ongoing and
continuous communication between courts and the public.” Post & Siegel, Roe Rage,
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942 Drake Law Review [Vol. 55
Similarly, Friedman and Smith argue that the “contestability of
[constitutional] history . . . may represent an essential element of nation-
shaping. The very process of telling the story, of disagreeing about it, of
emphasizing one piece or another . . . is what the Constitution is about.”
85
So, too, Jack Balkin suggests that “[t]he fact that people have their own
interpretations of what the Constitution means, and the fact that the
political system is full of dissensus and disagreement is actually necessary
to the achievement of a legitimate constitutional system.”
86
And Michael
Seidman argues that a Constitution that can be used to upset political
settlements ensures there are “no permanent [political] losers” and
“provides citizens with a forum and a vocabulary that they can use to
continue the argument.”
87
“Even when they suffer serious losses in the
political sphere, citizens will have reason to maintain their allegiance to the
community,” he writes, “not because constitutional law settles disputes but
because it provides arguments, grounded in society’s foundational
commitments, for why the political settlement they oppose is unjust.”
88
These evocative suggestions return us to the book at hand, or at least
its author. This work is, at bottom, about the ways in which citizens
maintain their constitutional faith,
89
and it suggests that a final reason why
we might value the ongoing contestability of constitutional law is that we
are in basic agreement with Sandy Levinson. The process of informal
amendment produces many of the things that Levinson values in a
constitution. That is, at least, one way to read his most beautiful book,
Constitutional Faith.
90
Because it is unavailable for some small portion of
the Constitution, Levinson tells us to ease the formal amendment process.
But that choice may, in the long run, eliminate what some of us, Levinson
included, might value most highly about the way our constitution changes.
supra note 26, at 9, 62.
85. Friedman & Smith, supra note 20, at 84–85.
86. Balkin, supra note 29, at 509.
87. SEIDMAN, supra note 64, at 8.
88. Id.
89. See, e.g., Post & Siegel, Legislative Constitutionalism, supra note 26, at 16.
90. SANFORD LEVINSON, CONSTITUTIONAL FAITH (1988). Levinson identifies
himself as a “Catholic” on the source of legal authority (thus subscribing to a view that
constitutional authority does not derive from the text of the Constitution alone) and as
a “Protestant” on the locus of interpretive authority (a view that the Court is not the
sole interpreter of the Constitution). Id. at 209 n.161; see generally id. at 47–53. The
informal amendment process, of course, resonates deeply with Levinson’s Catholic-
Protestant commitments. Cf. Balkin, Respect-Worthy, supra note 29.
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That, it seems, is the quandary that Levinson’s challenging and
engaging book squarely presents. It may not change Levinson’s ultimate
answer, but it seems to be a better accounting of what is at stake.
