New Year, New Amendments

PUBLISHED

Amy Kapczynski (@akapczynski) is Professor of Law at Yale Law School. 

Aziz Rana is Professor and Provost’s Distinguished Fellow at Boston College Law School.

Robert L. Tsai (@robertltsai) is Professor of Law at Boston University School of Law

PUBLISHED

Amy Kapczynski (@akapczynski) is Professor of Law at Yale Law School. 

Aziz Rana is Professor and Provost’s Distinguished Fellow at Boston College Law School.

Robert L. Tsai (@robertltsai) is Professor of Law at Boston University School of Law

This summer, the New York Times reflected on the worrisome fact that the Constitution has not been meaningfully amended in fifty years and asked seven writers and legal scholars how they think we should update the Constitution. While some of the proposed amendments would have welcome effects, there was a strange mismatch between the issue-specific ambitions of the amendments and the larger, structural problems that NYT itself identified in framing the series. Protecting our metadata, repealing zoning regulations, and banning abortion (thanks for that, NYT) will do little to address the creeping onset of institutional paralysis in American government. We need, instead, to consider revisions to our constitutional structure that are more foundational and far-reaching.

In that spirit, and with the optimism of a new year ahead, the LPE Blog asked Amy Kapczynski, Aziz Rana, and Robert Tsai to offer an idea for one amendment to the Constitution that could begin to address the cracks in the foundation. After assuring us that no one amendment would be able to fix what’s wrong with America, or its Constitution, they relented and offered the following proposals as places we might begin our renovations.

Amy Kapczynski

A Democratic Political Economy

“Congress shall have the plenary power and duty to legislate a democratic political economy, in order to provide genuine political equality for all natural persons. This shall include the power and duty to remedy structural discrimination, to empower workers, to provide for the care and health of the people, and to ensure a sustainable environment. The judiciary shall defer to Congress with respect to legislation that pursues these ends, notwithstanding any other provision in the Constitution.”

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The Constitution “constitutes” us as a people – it outlines the structures and powers that order our democracy. No one amendment can resolve all of the ways in which our constitution fails to live up to our democratic ideals. But this is a thought experiment, and in that spirit, I’ve drafted an amendment focused on two things: giving Congress a mandate – actually, a command – to create the social and material basis for political equality, and getting the courts out of the way where Congress acts for these purposes. The broad frame is one that readers of this blog will understand. The premise is that true democracy requires not just equal suffrage, but also a measure of material and social equality, secured by the nature of our political economy.

It’s tempting, when dreaming of amendments, to mandate one’s preferred results – a right to this or that, enforced by judges. But readers of this blog will also be familiar with the basic doubt that most of us who write here share about that model of politics: politics as deliverance from politics, the courts as gods from on high who somehow – against history and their own sociopolitical coordinates – will act in favor of radical equality. That won’t do, especially today. Today, we should demand a Constitution that enables the endless, hard, direct work of everyday democracy. Hence the focus on empowerment of Congress.

Currently, if Congress wants to pass legislation to protect the environment, healthcare, housing (imagine that!), or workers’ rights, it has to justify it as something else – as a means of regulating “commerce,” probably. And even that justification may not succeed, as our increasingly reactionary courts are curbing what we once thought were plenary commerce and spending powers, and manufacturing new obstacles to social protection. In recent years, the Supreme Court has, for example, struck down the ACA’s Medicaid expansion and crafted the Takings Clause and First Amendment into weapons against unions and ordinary environmental and commercial regulations. Courts have also recently reversed the meaning of the guarantee of equality passed after the Civil War, deploying it to uphold, rather than address, structural racism in our society.  This recent turn expresses a broader truth about courts: We want them to be protectors of the weak, but they more often protect the strong.

We need a Constitution that empowers – indeed requires – our government to address the most significant challenges of our time, and that requires that Congress create the material and structural basis for the equal citizenship that a democracy promises. This amendment would create these duties (though any hope of Congress fulfilling them would surely also require democracy reforms, such as public funding of elections and protection of equal voting rights.) 

It also prevents the courts from interfering with anything within its scope. Close readers will notice that this amendment would carve back judicial review without entirely eliminating it. You could think of what I propose here as a kind of meta-level jurisdiction stripping. It’s more assertive than simply returning us to the post-Lochner settlement, because it states that wherever Congress is seeking to legislate a democratic political economy, other constitutional protections – like the First Amendment – will not stand in the way. The reference to “structural discrimination” and the “empowerment of workers” are keyed to particular ways in which courts have recently tried to limit democratic sovereignty – for example, by striking down programs designed to remedy structural racism, and weaponizing the First Amendment against unions

Courts, of course, will adjudicate what does and does not fall within these categories. As long as we have courts, they will preside over jurisdictional questions like this. (For this reason, it is hard to separate structural reform from direct changes to the Court’s current composition in the conversation about Court reform.) The point is to disarm the judiciary in favor of a deep, material conception of democracy, and give a new name to the nature and purpose of our political union.

Aziz Rana

A Simplified Congressional Amendment Process

“Congress may propose any amendment to this Constitution by an agreement of two-thirds vote of each house.  Alternatively, Congress may propose any amendment by a majority vote of each house, followed by another majority vote of each house at the legislative session convening after the subsequent general federal election. 

Upon such adoption of the proposal, Congress must submit the proposed amendment to the people for approval at the next general federal election occurring at least three months after the adoption by each house. If a majority of those voting at that election approve the amendment, it shall be ratified and become part of this Constitution.”

This congressional amendment proposal draws from the Hawaii, Pennsylvania, New York, and Scottish constitutions.

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The American constitutional system as a whole is fundamentally broken. It is unrepresentative, fragmented, and riddled with veto points in ways that allow empowered elites to block much-needed policy reforms. Making matters worse, the U.S. Constitution is widely viewed by social scientists as the hardest in the world to amend. Americans are essentially stuck with a document that distorts democracy and feeds institutional paralysis, due to the disproportionate power that the Electoral College, the Senate, and the Supreme Court all give to small pockets of the population. The single best long-term procedural fix would be to simplify the congressional amendment process so that it is in line with how the U.S. states and the rest of the world operate. This approach should go hand in hand with additional pathways for formal change, from an appropriate mechanism for popular initiatives to increased flexibility in the use of conventions.

The potential benefits of simplification are almost too many to count. Currently, with possible amendments a dead letter, meaningful constitutional debate gets funneled into the federal courts. This hands enormous authority to lifetime judges and makes every new Supreme Court opening a pitched political battle. All of this is deeply unhealthy for a functioning democracy. A change to the amendment process would ensure that the public actually can participate in shaping basic governance arrangements. It would move the Constitution from a matter of remote law overseen by judges to a matter of politics shaped by the genuine goals of popular majorities. 

Americans would have a practical way to reflect on the underlying design of our increasingly brittle institutions and to directly address topics ranging from which rights to protect to how to reform the courts to what to do with the extreme malapportionment of the Senate. The defining questions of our time could be resolved democratically through mobilization and debate, rather than through the Sisyphean task of building the massive super-majorities needed for even minor improvements. Americans could then pass further amendments, as well as legislative bills, to establish twenty-first century arrangements for everything from reproductive, environmental, labor, socio-economic, and voting rights to policing and security practices, reparative legal obligations, and Native American sovereignty.

Robert Tsai

A Revival of Democratic Politics

“All political power is inherent in the people. The people reserve to themselves the authority to propose laws. Congress shall also have the power to enact legislation for the peace, order, and welfare of the people, and to enforce the Constitution’s provisions.”

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If added to the Constitution, these three sentences would work wonders to reinvigorate faith in the science of politics, end debilitating debates over the contours of legislative power, and reduce the outsized power of judges with lifetime appointment to interfere with congressional priorities. It would allow Congress to regain a prominent role in lawmaking and empower legislators to grapple with problems that those who drafted our 18th century constitution could never have been foreseen, such as wealth inequality, healthcare, climate change, and impediments to voting rights. It would institutionalize, for the first time, a mechanism for popular lawmaking to match the soaring rhetoric often used by elites to push their own narrow policies while ignoring the needs of their constituents.

This proposal would face the objection that it abandons a system of enumerated powers. The reality, however, is that we cast aside that system long ago—we just haven’t owned up to it. Today, legislators must make laws in the long shadow of judicial intervention. They don’t know when or how judges might strike down their solutions, which often reflect intricate compromises and the strong desires of their constituents. Many legislators find it more attractive to become a celebrity than do the hard work of legislating. Maintaining the fiction of enumerated powers has merely allowed factions to block policies they don’t like through partisan entrenchment and litigation, miring the country in a corrosive cycle of politics that leaves more and more citizens disaffected and open to extremist appeals. With such an amendment, no longer would critical national initiatives be subject to the whims of 5 unelected justices of the Supreme Court as to the appropriate scope of congressional authority.

Consider, too, the current crisis in this country posed by the prospect of the Supreme Court on the verge of rescinding abortion rights, and thereby reversing decades of hard-won gains in autonomy and equality. Because of the Court’s parsimonious reading of Congress’s authority under the Fourteenth Amendment, the 6-3 conservative majority on the Court could not only deprive the people of rights embraced by a majority of Americans, but also try to frustrate legislative efforts to codify abortion rights in federal law. The people’s liberties and authority must be rescued from the debilitating grip of court-centered constitutionalism.

If such structural reforms could be made, one major obstacle to effective majority rule would be removed, while another avenue for popular lawmaking would be added. Simplifying congressional authority would be especially effective when coupled with other reforms of the federal judiciary. I leave open the precise standards and protocols that would be most desirable to reduce special interest capture of a national referendum process and to ensure that laws that emerge from that process enjoy broad support.

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