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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Weekly Comment

The People and their Constitution

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May 24, 2005

The compromise reached last night by 14 Senators to avert today's planned showdown over judicial filibusters and the so-called nuclear option is a most welcome development for many reasons, especially because it shows that bipartisan moderation can sometimes still prevail over the intense demands of the left and right.

But the compromise does not fix the structural problem in American democracy that led to the nuclear brinksmanship over judicial filibusters in the first place. As discussed in last week's Column, defects in existing procedures for amending the U.S. Constitution are the underlying cause of the recent battles over judicial nominees, battles sure to be resumed with the next Supreme Court vacancy. Even with this Memorandum of Understanding on Judicial Nominees in effect, the identity and jurisprudence of any new Supreme Court justices remain uncertain. Most particularly, we do not know whether the President will nominate and the Senate will confirm Justices who will overrule Roe v. Wade , the Supreme Court's abortion rights decision that is "priority one" for the combatants on both the right and the left in the judicial nomination wars. (The relationship between abortion and the filibuster fight was underscored earlier yesterday, as noted by the Washington Post, when the Supreme Court agreed to consider another abortion case, Ayotte v. Planned Parenthood.)

We the people of the United States remain in the dark about the future of our Constitution for a variety of reasons. First, we don't know whether this new Senatorial compromise will cause the President to pick more moderate conservatives for the Court, ones more likely to retain Roe, or instead will embolden the President to force the issue by selecting more aggressive conservatives, ones that might provoke the Democratic signatories to say that "extraordinary circumstances" exist to justify a filibuster. Should such a filibuster occur, we don't know whether the Republican signatories - if they believe their Democratic colleagues are not acting in "good faith," as the Memorandum of Understanding requires - would declare the agreement breached and therefore suspended, allowing them to trigger the nuclear option after all. Most fundamentally, because judicial nominees never tell the Senate how they would decide a particular constitutional question, including whether or not they would overrule Roe v. Wade (and the nominees themselves may not know until the moment of truth arrives), all of us can only guess as to whether, once confirmed, the new Justices will be decisive in retaining or rejecting Roe.

Would it not be better if the people of the United States could determine for themselves, with reasonable clarity, the content of their own Constitution? Suppose the people, rather than waiting for unknown judges to make as-for-now unknowable decisions, could themselves vote on the following proposed constitutional amendment:

"Nothing in this Constitution shall be construed to interfere with the authority of Congress or the States to enact legislation that prohibits the termination of a human pregnancy. Any such prior construction of this Constitution shall henceforth by this amendment be null and void."

Adoption of this amendment, quite clearly, would overrule Roe. Conversely, rejection of this amendment by a vote of the People would demonstrate their acceptance of Roe as a valid interpretation of the existing Constitution. Currently, the People of the United States have no such procedure for voting directly themselves on constitutional amendments, and that is the great structural defect that prompts the present effort to obtain constitutional change through judicial appointments.

To be sure, there would be difficult questions to address were the nation ever seriously to consider adopting some form of referendum procedure for proposed amendments to the U.S. Constitution. First of all, how would proposed constitutional amendments get on the ballot, for the people to vote on? In other words, would Congress, or some other body, have to refer a proposed amendment to the people - a true referendum procedure? Or, instead, would the people have the right, by gathering enough signatures or otherwise, to put a proposed amendment on the ballot themselves - an initiative procedure? And, perhaps most significantly, once a proposed amendment was on the ballot, what percentage of the electorate would need to vote affirmatively for it to pass: a simple majority, a two-thirds vote, or some other supermajority rule?

Experience with referenda and initiatives at the state (rather than national) level suggests that the former work better than the latter: the people should be involved in determining the content of their own Constitution, but the framing of proposals for the people to consider should be conducted by a deliberative and representative assembly that can filter and refine the options, so that the people can make the best use of their own necessarily limited attention to proposals on the ballot in any given election. Congress, however, need not be the only deliberative and representative assembly with the authority to place proposed amendments to the U.S. Constitution on the ballot; if enough state legislatures wish to put a proposal before the American people as a whole, they should be able to bypass a recalcitrant Congress.

Nor should it be especially difficult for either Congress or the state legislatures to put a matter to the people. The ordinary means by which Congress acts should suffice: a majority vote by both Houses, together with the assent of the President, or two-thirds vote in each House. (The continued tradition of the filibuster in the Senate, however, will effectively require the concurrence of 60 Senators even under the former approach.) By analogy, I suggest that a petition adopted by a majority of state legislatures (26) should be enough to put a proposed constitutional amendment on the ballot, as long as the petition has the concurrence of the Governors of these states; otherwise, the petition should receive the support of two-thirds of the state legislatures (34).

Conversely, once on the ballot, the proposed amendment should be somewhat difficult for the people to adopt. History has also shown that constitutions should not be amended lightly. A requirement that a proposed constitutional amendment receive a two-thirds vote of the ballots cast would guarantee that it has sufficient support among the American people to be worthy of inclusion in their Constitution. Remember that not all eligible voters choose to participate in elections - or even register to vote. Indeed, I might add the concurrent requirement that, that not only must two-thirds of the ballots cast approve the proposal, but also the total number of these affirmative ballots represent an absolute majority of adult American citizens (whether registered or not, as determined by the most recent census).

The danger of making it too difficult to amend the Constitution by means of a referendum, however, is that citizens seeking constitutional change will endeavor to bypass the referendum procedure, resorting instead to the judicial nomination process. After all, that's precisely what has happened because the current non-referendum method for amending the Constitution, which requires approval of three-fourths of the states, is too burdensome. Therefore, even if the proposed referendum procedure were in place, requiring two-thirds voter approval (representing an absolute majority of adult citizens), we can imagine opponents of Roe v. Wade unable to overturn that decision by means of this procedure and attempting instead to achieve the same result by putting anti-Roe justices on the Supreme Court. Suppose, in other words, that the proposed anti-Roe amendment set forth above goes down to defeat in a referendum requiring two-thirds approval; we can imagine anti- Roe forces not accepting defeat and pressing forward through the alternative avenue of judicial appointments.

My conjecture, however, is that the present practice of using judicial nominations as an alternative means of amending the Constitution would become discredited if there were a referendum procedure for constitutional amendments in place. "The People have spoken" is a powerful message, one that exists when they've voted directly on a proposed amendment, but not when the only method for changing the text of the Constitution requires going through state legislatures. Even if the referendum procedure for requires a supermajority, as long as that procedure is publicly accepted as the legitimate method for amending the Constitution, then a "no" vote on a proposed amendment would be recognized - and accepted - as a defeat for that proposal. (Making it fairly easy to put an issue to the people helps this procedure require the necessary legitimacy for its results to be decisive.) Judges, even those ideologically predisposed towards a defeated proposal, would feel bound to accept the vote of the people themselves. That's a powerful force that a referendum procedure would have that the current amendment procedure in Article V of the Constitution lacks.

Thus, for all the virtue of the historic Senatorial compromise of Monday, May 23, 2005 , the only way out of the quagmire concerning the use of judicial appointments as a proxy for constitutional amendments is a new referendum procedure for constitutional amendments. Giving the people the power to control directly the content of their Constitution is the only way to constrain the Supreme Court to obey the will of the people, and only when it is apparent that the Court will respect what the people say will the effort to subvert the people's will through ideologically motivated judicial nominations seem a pointless exercise. In the absence of a referendum procedure, however, we can expect continued partisan warfare over Supreme Court nominations, with no clarity as to which side was victorious after the bloodbath. Indeed, we cannot be sure even that this praiseworthy compromise will survive once the anticipated Supreme Court vacancy arrives.