The Politics of Constitutional Design: Obduracy and Amendability - A Comment on Ferejohn and Sager
William E. Forbath
University of Texas at Austin - School of Law
U of Texas Law, Public Law Research Paper No. 66
John Ferejohn and Larry Sager's contribution to the Symposium on Precommitments offers an elegant and important argument in praise of Article V and the obduracy of the United States Constitution. I think it is wide of the mark. For them, the key purpose served by obduracy is this: A constitution as hard to amend as ours will be more likely than others to assure the realization of that constitution's substantive normative commitments - more likely, that is, to bring to earth the constitution's commitments to liberty, equality, and the like. But Ferejohn and Sager's argument is too categorical to persuade. True, a significant degree of obduracy may help attain the constitutional goods they highlight: broadly worded justice-seeking amendatory language, and constitutional courts authorized and able to make the commitments workable and real. However, both logic and experience suggest that amendment rules need not be remotely as obdurate as ours to provide what support such rules can offer to securing those goods.
More than that, obduracy on the order of the U.S. Constitution may actually erode and thwart a nation's capacity for realizing many of its deepest constitutional commitments. Ferejohn and Sager's commitment-centered case on behalf of Article V rests on a court-centered model of how the Constitution's substantive commitments have been elaborated and enforced. According to this model, popular challenges to judicial interpretations have been a threat to the realization of those commitments. Because popular oversight of the process of constitutional interpretation and enforcement is a threat, we are fortunate that Article V makes such involvement and oversight an extremely daunting, protracted and procrastinating process. But this model is too simple by half. Popular constitutional politics, including popular challenges to judicial interpretations, have had a more complex relationship to judge-made constitutional law. Popular political challenges have been both a threat to and an essential source of the justice-seeking elaboration of the Constitution's substantive commitments. Social movements, including popular efforts to amend the Constitution, have proved an indispensable crucible of the very judicial interpretations Ferejohn and Sager prize. A Constitution too obdurate can and, in several important cases, has stifled this generative process.
If that is the case, then the design objective Ferejohn and Sager invoke in defense of obduracy demands instead a balancing of obduracy and amendability; or so this essay argues, via whirlwind tour of twentieth-century U.S. constitutional history and a comparative coda that takes a glimpse at how well the experience of other nations seems to square with Ferejohn and Sager's thesis.
Number of Pages in PDF File: 20Accepted Paper Series
Date posted: May 10, 2004
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