One reason (although not the only one) that judicial review is always under attack is because the Constitution is very hard to amend. The Supreme Court is often viewed to be the final word on hot-button issues such as abortion. Although there are many cases where the Court is unfairly viewed as the final word, where Congress can address an issue but doesn’t, there are certainly instances where the Court is, in practice, virtually the final word. I say “virtually” because the Court is never really the true final word. The Constitution can always be amended. . . . yeah, and my articles really can get accepted by the Harvard Law Review.
Article V of the Constitution provides for how it should be amended:
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. . . .
This is quite a chore. It is hard enough to propose an amendment (get two thirds of both the House and Senate or two thirds of the states). Then you need three fourths of the states to ratify. To say that this is hard is an understatement. Let’s just say that Odysseus would have an easier time getting home than getting an amendment ratified.
The Constitution has only been amended 27 times, 10 of which consist of the Bill of Rights, which were proposed and ratified shortly after the ratification of the Constitution. That means that in over 200 years, the Constitution has barely been amended.
As a result, Bruce Ackerman suggests that we have found ways to amend the Constitution outside of Article V – namely, via Supreme Court interpretation. The very structure of our government and countless extremely important questions rest on interpretations of the Constitution that have little connection at all to the text. Now, I’m certainly far from a textualist, and I don’t believe that there’s an essential meaning to any particular text. But one must admit that there is some serious misalignment between the text of the Constitution and what the document has been interpreted to mean.
I agree with Ackerman that the Constitution’s meaning has shifted in radical ways, and that these interpretive “amendments” can be seen as legitimate (although I’m not sure that legitimacy should be the metric by which interpretations are judged). Anyway, I don’t really want to get into the legitimacy debate in this post.
What I want to suggest is that no matter what theory one uses to justify judicial review, the charge that we are being ruled by justices acting as Platonic guardians will probably always be with us. Constitutional theorists have spilled tons of ink attempting to address Alexander Bickel’s countermajoritarian difficulty, and I have found some theories to be quite compelling, but few have really had much resonance with the public.
I think that the best solution is to make the Constitution easier to amend. If the Court decides something the People don’t like, then they can amend the Constitution. Because the Constitution is so hard to amend, there’s a sense of paralysis when the Court issues a decision. Roe v. Wade launched a battle over the Court, and the focus has been on appointing justices who would uphold or overturn Roe. But if the Constitution were easier to amend, maybe the battle would be fought without the Court always in the balance.
The bar shouldn’t be set too low for amendment, as it is important to require consensus-building and a significant commitment to amend. Perhaps the standard should be two thirds of both the House and Senate to ratify. I’m haven’t figured out what the precise standard should be, but I am strongly convinced that it should be easier than it currently is.
This way, the claim that the Court is the last word on issues will lose its thunder. The Court will be less of a battle point. Why should contentious political issues such as abortion be resolved based on the vagaries of who happens to be President when appointments need to be made? This is what is happening, and as Brian Tamanaha points out in an earlier post here at Balkinization, it is hopelessly politicizing the appointments process and the legal system as well.
Amending the Constitution to make it easier to amend might never de-politicize the courts, but it would shift more of the political battle away from them, which is a good thing. I want a Supreme Court that will be bold from time to time, as in Brown v. Board of Education, and, yes, Roe v. Wade. The problem is not with the Court being bold; indeed, I think that the Court is bold only rarely – too rarely, I believe. The real problem is that there must be a better more fruitful way for the People to respond other than decrying the Court and hoping one day for new appointments.
Of course, my proposal requires amending the Constitution. Alas, the vicious circle.
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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. Professor Solove also posts at his blog at LinkedIn. His blog has more than 1 million followers.