In this chapter, Sanford Levinson examines the practice and implication of appending amendments to the end of the Constitution and inquires how many times the Constitution has amended. The presumptively correct answer number of amendments, at present, is twenty-seven, but those are only textual amendments to the Constitution. “How many times has the United States Constitution been amended” generates what Wittgenstein well described as “mental cramps.” His own belief was that one could cure these cramps by dissolving many traditional questions of philosophy. We could do the same if we adopted a truly minimalist understanding of “constitutionalism” that allowed, for example, anyone designated as the Ruler to rule by absolute discretion. One might proffer this as a variant of Hobbesian constitutionalism, whereby the sovereign people, realizing that nothing else can in fact guarantee them the security they yearn for, delegate their powers to an all-powerful Leviathan. An alternative is what has come to be identified as “liberal constitutionalism,” with the attached meaning of governments that are established through institutions created (and limited) by the constitution itself.

Looking back to the American constitutional founding, we see a gap between soaring transformational rhetoric on the one hand and preservation of privilege and slavery on the other. Emphasizing what the legal historian Michael Klarman has called a “coup” by the framers against more broadly inclusive democratic institutions, this chapter argues that the final set of compromises extracted by the forces of preservation amounted to a “pact with the devil”. The first period of implementation witnessed a set of brutal battles over interpretation of the constitutional text, especially about issues of state sovereignty and the scope of national power, that played out in the courts and the political sphere. The preservation of the new country was hardly to be taken for granted, and this meant that those with transformationist aspirations had to of necessity temper their demands.

INTRODUCTION: WHY WRITE DOWN CONSTITUTIONAL UNDERSTANDING?

A basic question facing any student of constitutions is what accounts for the modern prevalence of written constitutions. Political scientists since Aristotle, after all, have understood that societies invariably have collective political understandings that can be called “constitutions,” whether or not they are written down. What is the point of putting such understandings in writing? As we are often reminded, the United Kingdom–one of the world's great democracies, at least by conventional criteria–sustained itself over many centuries without such a constitution, even if one might well regard British membership in the European Union and its commitment to the European Convention on Human Rights as fatally weakening the conventional description of the country as lacking a written constitution. Moreover, that description is still accurate with regard to one of Britain's former colonies, New Zealand, which may have “superstatutes,” such as the New Zealand Bill of Rights Act, but still functions without a canonical constitution. The same is true of Israel. Still, it is obvious that at least since the loss in 1783 of one of the major parts of the British colonial empire–in terms of subsequent history, it is perhaps not unduly chauvinistic to say the major part of that empire–the trend has been very much in favor of written constitutions. For this, one may presume, the United States bears some significant responsibility; it had, by 1787, become the home of a plethora of written constitutions.

DWORKIN ON SLAVERY-ACCOMMODATING JUDGES

On December 5, 1975, Ronald Dworkin published in The Times Literary Supplement a review of Robert M. Cover's now-classic Justice Accused: Antislavery and the Judicial Process. Cover's central subjects were Northern judges, many of them professing to be antislavery, who nonetheless asserted that they were duty bound to enforce the iniquitous Fugitive Slave Laws of 1793 and 1850. Perhaps the most notable example was the 1842 decision in Prigg v. Pennsylvania, written by Joseph Story, perhaps the most eminent member of the Court at that time in part because of his extrajudicial status both as the Dane Professor of Law at the newly founded Harvard Law School as well as the author of a three-volume treatise on the Constitution. In Prigg, Story described the Constitution as containing a “fundamental” recognition of the rights of slaveowners, which meant not only that the Fugitive Slave Act passed by Congress in 1793 was perfectly constitutional but also, and just as ominously, that Pennsylvania's “liberty law,” designed to accord suspected fugitives some basic rights of due process of law, was unconstitutional as an interference with the national rights granted slaveholders by the Constitution. Dworkin aptly wrote that “these statutes, particularly the [Fugitive Slave Act of 1850], offended ordinary notions of due process in several ways: the federal official was a mere commissioner who received a higher fee if the alleged slave was sent back than if he was not, there was no question of jury trial, and the defendant was not allowed to contest whether he was in fact a slave, that issue being left to be decided in the slave state after his return.”

The topic of this section is “constitutional engagement by legislatures.” This almost inevitably suggests that the legislature – although it is obviously a nonjudicial institution – can legitimately play a meaningful role in interpreting its particular national constitution. Should the legislature in question be a “parliament,” then, of course, we need not speak of concomitant “executive” engagement because the executive, in a parliamentary system, is him- or herself a parliamentarian. In a “presidentialist” system like that of the United States, however, where a politically independent “chief executive” coexists with the legislature – and, of course, the judiciary – the question of nonjudicial “engagement” is necessarily broader. In any event, because of my own background as an American constitutional lawyer, I shall be discussing the extent to which both Congress and the executive can serve as independent constitutional interpreters. My major theoretical concerns, however, do not depend on the particularities (and peculiarities) of the American political system, and I certainly hope that my arguments will be relevant across national boundary lines and across political systems.

My focus in this brief chapter is the capacity of nonlawyer members of legislatures (or, for that matter, any other branch of government or, ultimately, ordinary citizens themselves) to engage in constitutional interpretation. Perhaps an even deeper question is whether constitutional interpretation requires professional training, which would, among other things, mark off the enterprise as significantly “esoteric,” or is it indeed something that can be engaged in by ordinary, nonprofessionally trained men and women?

Imagine two written constitutions. One sets out a standard series of political structures and governmental empowerments and limitations; it concludes with a clause saying: “Anything in this constitution can be changed by the passage of ordinary legislation as spelled out in this constitution.” Were this “parliamentary sovereignty” model – found, for example, in the Austrian Constitution – present in the United States Constitution, then constitutional amendments could come about by agreement of majorities in both houses of Congress and assent by the president or by two-thirds vote in each house overriding a presidential veto. Our second constitution comes to a radically different conclusion: “And the Articles of this confederation shall be inviolably observed by every state …; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a congress of the united states, and be afterwards confirmed by the legislatures of every state.” Not only does the second constitution require assent by a different institutional layer from that of the national political assembly, in this case, the constituent states of the union; it also requires that this latter act of assent be unanimous. By definition, as with Poland's (in)famous liberum veto, this allows one holdout state to countermand the desire of every other state (and, presumably, the national legislature) for constitutional change. Both of these examples are taken from real political life, even though the latter constitution, the U.S. Articles of Confederation, lasted only six years.

Like other contributors to this volume, Catharine Peirce Wells takes note of what she calls the “big finish” of The Path of the Law, which concludes with the evocation of “an echo of the infinite, a glimpse of its unfathomable process, a hint of the universal law.” She argues (in Chapter 9 of this volume) that this powerful statement seems to dissolve the tensions suggested by standard-form positivism, with its sharp separation between law and morals and thus, at the very least, contributes to the difficulty in locating Holmes along any single intellectual spectrum.

Wells's own strategy in overcoming the “seeming inconsistencies” of Holmes's thought is to look at him through what might be called a Jamesian filter. That is, she asks us to interpret Holmes as if he were, in some measure, “really” William James, a contemporary who was also, in fact, a close associate of Holmes during his youth and young adulthood in Boston. We are invited to imagine Holmes and James “drinking whisky, smoking cigars, and discussing philosophy well into the early morning.” She argues that such experiences may well account for “a lifelong resonance between the views” of Holmes and James. Appropriately enough, given Jamesian pragmatism, Wells says that “this way of reading Holmes seems to work” by “reconcil[ing] some of the more obvious contradictions” within Holmes's thought, including the relatively few pages of The Path of the Law itself, and “makes sense of the inspirational passage at the end of the essay.”