This short paper presents a synopsis of the Chicago Public Law and Legal Theory Working Paper titled “Constitutional Amendments and the Constitutional Common Law,” written by Professor Adrian Vermeule, Professor of Law at the University of Chicago in 2004, available at http://www.law.uchicago.edu/files/files/73-av-amendments.pdf (accessed July 2, 2015).
The gist of the paper is that we should not be predisposed against using the Article V constitutional amendment process. Vermeule critiques the position attributed to Kathleen Sullivan and others that there should be a general presumption against amending the Constitution. Such a view favors constitutional change through court decisions as opposed to constitutional amendments. He argues that this position, when widely adopted, exerts a drag on the amendment process that may do more harm than good.
By disadvantaging the amendment process, the court-centered view tips the balance in favor of constitutional change brought about through common law judicial decisions, which he believes hold equal or greater peril. The alternative to the amendment process is continuous reinterpretation of the Constitution left to the courts – that is, “to an ongoing constitutional convention whose delegates are all judges (and hence all lawyers).” He points out that no member of another profession has ever been appointed to the Supreme Court, although no law prohibits the appointment of others. Whatever the other advantages or disadvantages of the amendment process, it would presumably involve a more diverse group of actors.
In responding directly to Kathleen Sullivan’s paper, he argues that the case against the Article V process is based on a fallacy: that the alternative to constitutional amendment is stability, when in fact the alternative is continual judicial updating of the Constitution, which often produces as bad or worse results than the constitutional amendment process does.
Here are some of the prominent arguments that Vermeule counters:
- Amendments politicize the Constitution: so, he argues, do judicial interpretations of the Constitution, as we have seen in the continuing political struggle after Roe v Wade and as we may yet see with decisions on campaign finance, the Affordable Care Act, and same-sex marriage.
- Amendments clutter up the Constitution: the real alternative to lengthy text in the Constitution is to have a complex and tangled underbrush of judicial decisions. “A complex society will produce complex constitutional law; the only real question is whether it is good to outsource … complexity… to the adjudicative process.”
- Amendments represent a “mutiny” against the Supreme Court: on the contrary, more amendments would leave less room for judicial flip-flops, over-rulings, creative and novel interpretations. An increased rate of amendment might actually legitimize the Court.
- Amendments have bad unintended consequences: judicial updating may also have unforeseen consequences, as may judicial inaction or amendment restraint. “Worry about perverse consequences … yields paralysis, not safely.”
- Amendments should not encode “mere social policies” but should expand individual rights or improve government structure: why shouldn’t other types of amendments be considered as circumstances change? The fact that the previous 27 amendments can be largely categorized this way is “curve fitting” on a very small number of amendments.
In conclusion, Vermeule argues that both the amendment process and the judge-made constitutional law may be appropriate alternatives in different circumstances.
Kathleen M. Sullivan, What's Wrong with Constitutional Amendments, in GREAT AND EXTRAORDINARY OCCASIONS: DEVELOPING GUIDELINES FOR CONSTITUTIONAL CHANGE 39 (1999)(emphasis added)[hereinafter Sullivan, Constitutional Amendments].