Ways to Change: A Reevaluation of Article V Campaigns and Legislative Constitutionalism

Abstract:     
Recent scholarship has convincingly shown that social movements shape constitutional law, and vice versa. To date, most theories study alternatives to formal constitutional amendments or consider the proper role for the courts in influencing the development of social movements. In this Article, however, I approach the question of constitutional change from the standpoint of social movements that oppose a constitutional decision In telling stories about a proposed Human Life Amendment, right-to-die lawyering, the Freedom of Choice Act, and the litigation of Planned Parenthood of Southeastern Pennsylvania v. Casey, I give a preliminary account of the advantages of two under-emphasized change-making tools - Article V campaigns and efforts to change the meaning of judicial decisions by statute.

In showing that the Article V amendment process is slow and cumbersome, current scholarship has described alternatives to the formal amendment process that are argued to be more dynamic and more easily manipulated by popular movements/ Similarly, since the Supreme Court’s 1997 decision in City of Boerne v. Flores placed stringent limits on Congress’s fourteenth-amendment authority to define constitutional rights or remedies differently than the Court, scholars have questioned the continuing value of using legislative campaigns to change the Constitution’s meaning.

By illustrating the shortcomings of the formal amendment process or legislative struggles, however, we risk losing sight of the ways in which movements can productively use these campaigns to change the meaning of constitutional precedents. Using the Human Life Amendment as a model, I argue instead that Article V campaigns provide movements with the time and freedom to explore and refine new constitutional ideas. Because Article V amendment proposals produce struggles that stretch over years or decades, a social movement has time to develop unified arguments that address counter-movement challenges. And because Article V campaigns are not governed by the rules limiting congressional authority and do not require deference to Supreme Court precedent, social movements pursuing formal amendments have more freedom to offer new understandings of the meaning of the Constitution.

In evaluating the Freedom of Choice Act, I contend that the limits imposed in legislative struggles on movements’ freedom to explore different constitutional arguments - the political pressures to win votes and the legal pressure not to raise questions about congressional authority - force movements rapidly to develop precise, conflict-tested claims. In turn, these claims may prove beneficial in subsequent litigation.

Number of Pages in PDF File: 43

Keywords: Social Movements, Constitutional Change, Abortion, Reproductive Health Law

Accepted Paper Series