Sanford Levinson has assembled a sparkling collection of essays on the theory of constitutional amendment. RESPONDING TO
IMPERFECTION belongs in the library of every student of the Constitution. The volume includes contributions from twelve
authors. Eight chapters are new essays, while four are revisions of previously published work. A brief introduction by Levinson
completes the collection.
Together, these essays explore a series of important puzzles about constitutional change. These puzzles emanate from a familiar
source: the dynamic interplay between means and ends in constitutional interpretation. Article V of the United States Constitution
describes a set of means for amendment. Those means are not ends in themselves; there is nothing magical about two-thirds of
Congress or three-quarters of the states that explains why the Constitution should change when, and only when, Article V's
procedural gauntlet has been run. Presumably, Article V's procedures exist as means to the achievement of some independently
attractive end or ends, such as justice or popular sovereignty.
But, if that is so, Article V's explicitly specified means might be imperfectly suited to the ends presupposed either by the Article
itself or by the Constitution more generally. And when a tension between means and ends exists, constitutional means might have
to give way to constitutional ends. One thus has reason to ask whether compliance with Article V's procedural requirements is
either necessary or sufficient to amend the Constitution.
Until recently constitutional theorists have largely ignored such questions. They have been mistaken to do so, as the rich arguments
in RESPONDING TO IMPERFECTION illustrate. Chapters by Bruce Ackerman and Akhil Amar summarize their well-known
arguments that compliance with Article V is not NECESSARY to amend the Constitution. Levinson has elicited succinct, readable
articulations of their positions from both Ackerman and Amar (neither exceeds thirty pages), an attraction which should earn this
book a spot on the required reading list for virtually any course in American constitutional theory. Following the essays by
Ackerman and Amar is a critique by David Dow, who defends Article V procedures as the exclusive means for constitutional
amendment.
In later chapters, Walter Murphy, Mark Brandon, and John Vile engage in a spirited debate about whether compliance with Article
V's procedural mechanisms is SUFFICIENT to amend the Constitution. Suppose, for example, that an amendment authorizing
slavery were proposed and ratified pursuant to Article V's procedures; might the substance of the amendment nevertheless render
it invalid? Murphy, whose work pioneered modern inquiry into this topic, squarely endorses the idea of 'unconstitutional
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constitutional amendments'; Brandon does so in more qualified fashion; and Vile rejects it.
Bracketing these debates about the necessity and sufficiency of Article V procedures are two other sets of essays. At the front of
the book, chapters by Levinson and Stephen Griffin canvass various concepts of constitutional change. Levinson's chapter is
excellent. At the close of the book, three essays provide comparative perspectives on constitutional amendment. Donald Lutz
contrasts amendment practices in the fifty states and in foreign countries with practice under the United States Constitution;
Stephen Holmes and Cass Sunstein co-author an essay discussing the amendment rules best-suited to constitutionalism in Eastern
Europe; and Noam Zohar uses Jewish religious doctrine to draw an analogy between political and theological change. The
contribution from Holmes and Sunstein combines theoretical sophistication and empirical detail in an especially rewarding fashion;
Lutz's essay, though marred by some dubious efforts to draw normative conclusions from statistical patterns, offers a number of
provocative observations.
Finally, in a short but crucial essay in the center of the volume, Frederick Schauer asks whether it is possible to distinguish
amendment from other forms of constitutional change (such as re-interpretation or revolution) on the basis of criteria external to a
legal system. He answers in the affirmative. Schauer's positivist argument is thoughtful and precise, but ultimately unpersuasive.
To identify some change as a constitutional amendment is to make a claim about that change's authority within a particular legal
system; as such, the claim must be open to contest by participants in the constitutional system in the same way as any other claim
about what the law is. (Dworkin, 1986).
For that reason, one might say that RESPONDING TO IMPERFECTION challenges American constitutional scholars to take
Article V seriously. One way to fail at that enterprise is to read Article V mechanically rather than purposively, and hence to miss
the implicit tension between ends and means. Any attentive reader of RESPONDING TO IMPERFECTION should be cured of
that vice. But another way to fail the test is to dismiss Article V entirely, and here the book is less successful. The best essays on
American law in this volume are those which begin from Article V, and the constitutional text more generally, to explore the limits
of Article V -- as Ackerman, Amar, Murphy and their interlocutors all do. This interpretive inquiry is indispensable if we are to
develop criteria distinguishing 'constitutional amendment' from mere 'political change.' Unfortunately, not every author in the book
is sensitive to this interpretive requirement -- so, for example, Griffin's contribution is substantially undermined by his largely
unargued assertion that large-scale political change signals a constitutional amendment. In a book that rightly calls upon readers to
take seriously such exotic ideas as the 'unconstitutional constitutional amendment' and 'structural amendment,' it seems fair to
demand that the authors take seriously the more conventional, but in its own way equally imaginative, idea of 'radical
re-interpretation of an existing, unamended Constitution.'
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The book's occasional lapses in this regard may have something to do with the theoretical proclivities of its editor, who candidly
admits his doubt that anyone could, after appropriate deliberation, conclude that Article V procedures are, after all, both necessary
and sufficient to identify constitutional amendments. As a result, Levinson is appropriately skeptical about thoughtless reliance
upon Article V, but he is perhaps too willing to see Article V set aside entirely. If this collection has any substantial flaw, it is the
absence of contributions from some especially thoughtful defenders of the constitutional logic of Article V. The essays by Dow
and Vile are useful but too formalist to be fully satisfactory. Levinson himself notes with regret that it was not possible to get a
chapter from William F. Harris, who has explored with great subtlety Article V's multiple amendment paths (the Article specifies
two mechanisms for proposing amendments and two for ratifying them). (Harris, 1993). Also missing is any sample of the work of
Lawrence G. Sager, who has defended Article V exclusivity as an important element in justice-seeking constitutionalism. (Sager,
1990).
But these are quibbles, not intended to detract from an enthusiastic thumbs-up for this provocative collection of essays. Indeed,
one of the most interesting questions raised by the book is why this topic has languished in obscurity for so long, and why it has so
suddenly begun to attract substantial academic attention. Some of the book's contributors suggest that amendment's time has come
because the United States stands in need of radical constitutional reform. Whether or not such a need exists, it does not
adequately explain the arguments of Ackerman, Amar, or Murphy, whose influential theories bear little connection to any
identifiable agenda for constitutional change.
I would propose a different explanation. In the wake of the Warren Court's achievements, constitutional scholars became more
interested in what judges should do than in what the Constitution means. As Levinson himself observed more than a decade ago
(Levinson, 1981), the influential books by John Hart Ely (1980) and Jesse Choper (1980) were theories of judicial review, not
theories of constitutional meaning. Judicial review has lost some of its luster in recent years, as the Supreme Court has moved in
directions unsatisfying to liberal constitutional theorists and as evidence of the practical inefficacy of judge-led reform has
mounted. Constitutional scholars have accordingly been drawn back to the Constitution and have found themselves with a
fascinating challenge: how to justify the dramatic changes to constitutional thought wrought by the New Deal and the civil rights
movement -- more precisely, how to justify these changes not by reference to the CAROLENE PRODUCTS footnote or some
other theory of the judicial role but by reference to a theory of the Constitution. Rethinking the distinction between amendment and
interpretation is one response to that challenge.
If I am right about this claim, RESPONDING TO IMPERFECTION is as much or more about constitutional interpretation than
about constitutional reform. Its publication may mark the renewed subordination of judicial review to
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constitutional interpretation -- and that is yet another reason to welcome this superb volume.
References:
Choper, Jesse. 1980. JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS. Chicago: University of Chicago
Press.
Dworkin, Ronald. 1986. LAW'S EMPIRE. Cambridge: Harvard University Press.
Ely, John Hart. 1980. DEMOCRACY AND DISTRUST. Cambridge: Harvard University Press.
Harris, William F. 1993. THE INTERPRETABLE CONSTITUTION. Baltimore: Johns Hopkins University Press.
Levinson, Sanford. 1981. "Judicial Review and the Problem of the Comprehensible Constitution." TEXAS LAW REVIEW 59:395.
Sager, Lawrence G. 1990. "The Incorrigible Constitution." 65 NEW YORK UNIVERSITY LAW REVIEW 65: 893.
UNITED STATES V. CAROLENE PRODUCTS COMPANY, 304 U.S. 144 (1938).
