Judge Kethledge has built an outstanding record of curtailing administrative state power.
Recently, I did a podcast interview on Constitutional Amendments and the Presidential Election. The interview, which was conducted by the National Constitutional Center, also featured David Strauss of the University of Chicago. Jeff Rosen, the President of the National Constitution Center and a Professor at George Washington Law School, was the interviewer.
It was an interesting discussion, which focused both on the constitutional amendment process and the impact that Hillary Clinton and Donald Trump might have on constitutional change if they were elected.
It was fun discussing these issues with David Strauss, because his views are so diametrically the opposite of mine. Many nonoriginalists resist being described as living constitutionalists. Strauss embraces it. He takes the opposite position of mine on a whole range of specific issues, which follows from his more general approach.
Strauss believes two main things about constitutional change. First, he claims that the actual practice of constitutional change occurs through judicial decisions and other governmental actions. In fact, he believes that constitutional amendments are largely irrelevant. Second, he believes that constitutional amendments are not generally a good way generally of changing the Constitution. The way that is actually practiced – where judges follow a common law like system – is better.
My view obviously differs from Strauss’s, but more as to normative matters than as to descriptive ones. As a matter of description, I agree to a significant extent with Strauss that the Courts do in fact effect most of the constitutional change in the country through nonoriginalist interpretation of the Constitution. This has been going on at least since the New Deal, but perhaps to a lesser degree for a considerably longer period.
The difference is that I believe this is a bad system. It would be far better if constitutional change occur through the amendment system. Although the amendment system is strict, it has many virtues. First, the amendment system ensures that constitutional amendments are supported by a consensus of the nation. To secure this consensus, people must compromise on their constitutional goals. Second, this consensus requirement means that people can feel more secure that the Constitution will not be changed in ways that they strongly dislike. Third, the amendment system makes use of a limited veil of ignorance. Because amendments typically last for so long, it is often difficult to determine how the amendment will apply to people in the future. This forces people to evaluate an amendment based on its public interest rather than on whether it benefits them.
By contrast, under Supreme Court judicial updating, constitutional change largely occurs through a majority vote of 9 people. There is little reason to believe these decisions will be supported by a consensus. Nor are these changes enacted by a veil of ignorance. If the Supreme Court does not like the way its decision applies in the future, it can overturn or modify its prior decision.