The Politics of Constitutional Design: Obduracy and Amendability-A Comment of Ferejohn and Sager
Forbath, William E., Texas Law Review
In constitutional design, no less than in constitutional law, the important questions often turn on "considerations of degree."1 They are ill understood in categorical terms. Amendability is such a question. Thus, I think John Ferejohn and Larry Sager's elegant argument in praise of Article V and the "obduracy" of the United States Constitution is wide of the mark. To ask whether a constitution should or should not be "obdurate to change"2 is less fruitful than asking what degree of obduracy or what degree of changeability best suits our purposes.
For Ferejohn and Sager, the key purpose served by "obduracy" is this: A constitution as hard to amend as ours, they say, 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. This is a high purpose. But Ferejohn and Sager's argument is too categorical to persuade. They attribute to Article V various attractive aspects of American constitutional practice and development, which, they say, have conduced to the realization of our substantive constitutional commitments. A reasonable degree of obduracy contributes to attaining the constitutional goods they highlight: broadly worded "justice-seeking" amendatory language, and constitutional courts authorized and able to make the commitments embodied in that general language 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.
What is more, 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. At least to the extent one may rely, as Ferejohn and Sager do, on "our constitutional experience" as a guide, that experience suggests that the generous elaboration and enforcement of some of the very constitutional commitments that liberals like Ferejohn and Sager (and myself) most prize have been hampered by our Constitution's unparalleled obduracy. Thus, in addition to all of its more familiar flaws, Article V-like obduracy may also be ill-suited for the very office for which Ferejohn and Sager commend it.
Ferejohn and Sager, we will see, assume that the judicial pathway for the elaboration and enforcement of constitutional commitments has proved the only significant route. Further, they assume that popular involvement, or what they call "popular oversight" of the process of constitutional interpretation and enforcement, is a threat to that process.3 But popular constitutional politics, including popular challenges to judicial interpretations, bear a more complex relationship to judge-made constitutional law. They often threaten the deepening and extension, elaboration and enforcement, of constitutional commitments, but they are also often a pathway of those processes, no less significant than the judicial one. Indeed, popular constitutional politics have been the central source of the judicial interpretations Ferejohn and Sager most prize. Movements to amend, in turn, are a central, generative form of such politics, and a constitution too obdurate often stifles them. If this 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 I will argue, via a whirlwind tour of twentieth-century constitutional history. But before the tour begins, the outlines of Ferejohn and Sager's argument need to be brought into fuller view, and a few more words need to be said about their assumptions, theoretical and meta-theoretical.
II. Ferejohn and Sager's Contribution
Thinking about how constitutions work, theorists of many stripes have found it useful to analyze constitutions in terms of commitments and commitment strategies. …