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«INTRODUCTION Thirty years ago, in Frontiero v. Richardson, the Supreme Court faced a novel and important question of constitutional interpretation: ...»

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PARTIAL CONSTITUTIONAL AMENDMENTS

*

Rosalind Dixon

Thirty years ago, in Frontiero v. Richardson, the Supreme Court faced an important

question of constitutional interpretation: in cases where the Court is being asked to develop the

meaning of the Constitution by common law means and considers democratic constitutional

understandings to be relevant, how should it respond to the existence of a parallel proposal to

amend the Constitution by means of Article V? The Justices divided sharply on this issue, and since then, neither the Court nor constitutional scholars have addressed this question. This article addresses this gap in the constitutional scholarship by defending the view adopted by Justice Brennan in Frontiero—that proposed amendments should carry positive rather than negative significance for the purposes of common law interpretation—and proposing that it should in fact be expended, as one potentially valuable means of responding to what it argues is the undue difficulty of successful constitutional amendment under Article V.

INTRODUCTION

Thirty years ago, in Frontiero v. Richardson, the Supreme Court

faced a novel and important question of constitutional interpretation:

in cases where the Court is being asked to develop the meaning of the Constitution by common law means, how should it respond to the existence of a parallel proposal to amend the Constitution by means of Article V, such as the proposed Equal Rights Amendment of 1972 (ERA)?

* Assistant Professor of Law, University of Chicago Law School. Thanks to Adam Cox, Jake Gersen, Tom Ginsburg, Alison LaCroix, Eric Posner, Adam Samaha, Geof Stone, Lior Strahilevitz, David Strauss, Adrian Vermeule, and participants in workshops at Harvard Law School and the University of Chicago Law School for extremely helpful comments on earlier versions of this paper. Thanks are also due to Emily Tancer, Ambika Singh and Galina Fomenkova for excellent research assistance, and to Richard Holden for permission to use the calculations in Parts I and IV derived from joint work on constitutional amendment. My thanks are also due to the Russell Baker Scholars Fund for research assistance.

1 411 U.S. 677, 687–88 (1973). While the same question implicitly presented itself forty years earlier in United States v. Darby Lumber Co., 312 U.S. 100, 116–17 (1941) (dealing with the issue of child labor regulation while a constitutional amendment on point had passed Congress but had yet to be ratified), the Supreme Court in that case in no way averted to or addressed the question.

2 For the idea of common law constitutional interpretation, see David A. Strauss, Common Law Constitutional Interpretation, 63 U. CHI. L. REV. 877, 879–80 (1996) (“The common law approach restrains judges more effectively, is more justifiable in

Abstract

terms than textualism or originalism, and provides a far better account of our practices.”).

3 For information on the history of the Equal Rights Amendment, which was passed by the House and Senate in 1972 but failed to be ratified by the necessary three-fourths of the states, see generally JANE J. MANSBRIDGE, WHY WE LOST THE ERA (1986).

644 JOURNAL OF CONSTITUTIONAL LAW [Vol. 13:3

Almost all the Justices in Frontiero implicitly agreed that “partial amendments” such as the ERA provided relevant information about democratic constitutional understandings. At the same time, they disagreed sharply as to whether such information should be treated as weighing in favor of—or against—a decision to interpret the Constitution in a parallel direction.

Justice Brennan held for four Justices that the ERA provided clear affirmative support for a decision by the Court to apply strict scrutiny to sex-based classifications under the Equal Protection Clause (“the positive view”). Justice Powell, by contrast, held for three Justices that as an amendment not yet ratified by the states, at least for some period, the ERA pointed in exactly the opposite direction—namely, against, rather than in favor, of a decision by the Court to apply any form of heightened scrutiny to classifications based on sex or gender (“the negative view”).

Since Frontiero, despite numerous proposed constitutional amendments, there has been no opportunity for the Court itself to revisit this question and no serious attempt by scholars to consider how the Court should go about the task of interpreting the Constitution in the shadow of partially complete, or failed, amendments under Article V. This Article addresses this gap in the constitutional literature, by arguing that the Court should endorse the Brennan position in Frontiero—as a means of mitigating what, it argues, is the undue difficulty of Congress using Article V in order to pass actual constitutional amendments.

The disagreement among the Justices in Frontiero, the Article suggests, was in essence about the merits of the hurdles Article V creates to Congress influencing the direction of constitutional meaning: on the positive view, endorsed by Justice Brennan, Congress has implicit scope to influence constitutional meaning even without the ability to obtain the support of state legislatures as required by Article V; whereas on the negative view endorsed by Justice Powell, Congress will 4 411 U.S. at 678, 687–88, 691. Chief Justice Burger and Justices Brennan, Douglas, White, Marshall, Powell, and Blackmun all took this position. The two justices who did not explicitly consider, and thus endorse, this position were Justices Stewart and Rehnquist.





5 See id.

6 Id. at 692.

7 But for an extremely useful descriptive account of the phenomenon of partial constitutional amendments, see generally Michael J. Lynch, The Other Amendments: Constitutional Amendments that Failed, 93 LAW LIBR. J. 303 (2001) (exploring the status of proposed but unratified amendments to the United States Constitution).

Mar. 2011] PARTIAL CONSTITUTIONAL AMENDMENTS 645 have power to engage in successful constitutional “dialogue” with the Court if, and only if, it can achieve both super-majority agreement and ratification by three-quarters of states legislatures (or conventions).

There are two reasons, in turn, to prefer the view of Justice Brennan to that of Justice Powell about the merits of Article V: first, progressive increases in the number of states in the U.S.—or the “denominator” for the purposes of Article V —have meant that Article V’s ratification requirements have effectively become more onerous, over time; and second, by global standards, Article V imposes some of the 8 For a general description of my preferred account the concept of dialogue, see Rosalind Dixon, The Supreme Court of Canada, Charter Dialogue, and Deference, 47 OSGOODE HALL L.J.

235, 239, 272 (2009) [hereinafter Dixon, The Supreme Court of Canada] (arguing that dialogue consists of a process of give-and-take between courts and legislatures in the process of constitutional interpretation, according to which courts attempt to promote their preferred reading of constitutional norms in “first look” cases, but defer to any contrary, minimally reasonable legislative judgments in “second look” cases). For different accounts of the idea of dialogue in the U.S. context, see generally NEAL DEVINS & LOUIS FISHER, THE DEMOCRATIC CONSTITUTION 238 (2004); LOUIS FISHER, CONSTITUTIONAL DIALOGUES: INTERPRETATION AS POLITICAL PROCESS (1988); Dan T. Coenen, A Constitution of Collaboration: Protecting Fundamental Values with Second-Look Rules of Interbranch Dialogue, 42 WM. & MARY L. REV. 1575, 1582–83 (2001); Paul R. Dimond, Provisional Review: An Exploratory Essay on an Alternative Form of Judicial Review, 12 HASTINGS CONST. L.Q. 201, 201–02 (1985); Barry Friedman, Dialogue and Judicial Review, 91 MICH. L. REV. 577, 580–81 (1993); Ruth Bader Ginsburg, Speaking in a Judicial Voice, 67 N.Y.U. L. REV. 1185, 1186, 1198 (1992); Michael J. Perry, Protecting Human Rights in a Democracy: What Role for the Courts?, 38 WAKE FOREST L. REV. 635, 676–77 (2003); Robert C. Post & Reva B. Siegel, Protecting the Constitution from the People: Juricentric Restrictions on Section Five Power, 78 IND. L.J.

1, 3 (2003). For other discussions of dialogue in a comparative context, see also KENT

ROACH, THE SUPREME COURT ON TRIAL: JUDICIAL ACTIVISM OR DEMOCRATIC DIALOGUE

295 (2001); Peter W. Hogg & Allison A. Bushell, The Charter Dialogue Between Courts and Legislatures (Or Perhaps The Charter of Rights Isn’t Such A Bad Thing After All), 35 OSGOODE HALL L.J. 75, 80–81 (1997); Peter W. Hogg, Allison A. Bushell Thornton & Wade K.

Wright, Charter Dialogue Revisited—Or “Much Ado About Metaphors,” 45 OSGOODE HALL L.J.

1, 7 (2007); Kent Roach, Constitutional and Common Law Dialogues Between the Supreme Court and Canadian Legislatures, 80 CAN. BAR REV. 481 (2001); Kent Roach, Constitutional, Remedial, and International Dialogues About Rights: The Canadian Experience, 40 TEX. INT’L L.J.

537 (2005); Kent Roach, Dialogic Judicial Review and its Critics, 23 SUP. CT. L. REV. 49 (2004); Kent Roach, A Dialogue About Principle and a Principled Dialogue: Justice Iacobucci’s Substantive Approach to Dialogue, 57 U. TORONTO L.J. 449 (2007).

9 Cf. Rosalind Dixon & Richard Holden, Constitutional Amendment Rules: The Denominator Problem, in COMPARATIVE CONSTITUTIONAL DESIGN (forthcoming 2011) [hereinafter Dixon & Holden, Constitutional Amendment Rules] (showing that there is a significant negative relationship between the size of legislative voting bodies and the rate of constitutional amendment in various states, indicating that population increases are likely to increase the difficulty of constitutional amendment).

646 JOURNAL OF CONSTITUTIONAL LAW [Vol. 13:3 most onerous hurdles in the world for the ratification of amendments.

Indeed, from both a historical and comparative perspective, the Article argues, there is an argument that even the requirements under Article V governing the proposal of amendments are too onerous. Compared to other countries, there are also few other formal mechanisms available to Congress, outside Article V, by which to influence constitutional meaning. From a democratic perspective, therefore, there is a strong argument that the Court should in fact extend Brennan’s approach in Frontiero to apply to all amendment proposals that obtain majority support in Congress—i.e., endorse a general principle of partial constitutional amendment.

A proposed amendment would clearly have weakest force, under such a principle, where it enjoyed only majority support in Congress.

In cases of actual super-majority support, or support at a state level, it would enjoy increased significance. However, it would have a negative impact on the chance of parallel Court-led constitutional change if, and only if, it was actually actively considered, but rejected, by a majority of either or both houses of Congress.

Because of this, recognition of a principle of partial constitutional amendment would directly increase the ability of both Congress and state legislatures to engage in successful parallel dialogue with the Court, by ordinary legislative means. By providing an additional “plus” factor in support of the validity of such legislative attempts at dialogue, in at least some cases, such a principle would inevitably help tip the balance in favor of a decision by the Court to uphold certain legislation as constitutional. The more clearly and broadly the Court recognized such a principle, the more likely it would also be that Congress would in fact pass partial amendments of a kind that could lead to this result.

There are, of course, a number of potential objections to a principle of partial constitutional amendment—most notably that it ignores the text of Article V and that it shifts the role of the Supreme Court too far in a pro-majoritarian direction, thereby undermining the Court’s capacity to protect minority rights even in a modest, dialogic spirit; or, that it instead tends to move the Court in a less, raDonald S. Lutz, Toward a Theory of Constitutional Amendment, in RESPONDING TO IMPERFECTION: THE THEORY AND PRACTICE OF CONSTITUTIONAL AMENDMENT 237, 265 tbl.

11 (Sanford Levinson ed., 1995) (demonstrating that in comparison to the constitutions of other countries, the United States Constitution is most difficult to amend).

Mar. 2011] PARTIAL CONSTITUTIONAL AMENDMENTS 647 ther than more, pro-majoritarian direction. On close examination, however, none of these objections seems sufficient to justify the outright rejection of a principle of partial amendment.

The argument proceeds in five parts. Part I analyzes the disagreement among the Justices in Frontiero and explains how this disagreement relates to the merits of Article V itself. Part II.A outlines the arguments that the ratification requirements imposed by Article V are too onerous from a historical and comparative perspective, while Part II.B makes similar arguments in relation to the requirements Article V imposes for the congressional proposal of amendments. Part III sets out the core idea of a principle of partial constitutional amendment and explains how it would help reduce the hurdles to Congress (and state legislatures) in successfully influencing the development of constitutional meaning. Part IV considers the three most plausible objections to such a principle and the logical and empirical answers to such objections. Part V concludes by considering the radical nature of such a principle and the actual chances of success for such a principle, given the likely obstacles to its initial adoption by the Court.

I. THE RELEVANCE OF PARTIAL AMENDMENTS & THE INFORMATIONAL

FUNCTION OF ARTICLE V

The Supreme Court, over time, has shown a clear willingness to consider information about democratic constitutional understandings—or the constitutional understandings of a majority of Americans—in interpreting various provisions of the Constitution.



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