Appealing Supreme Court Decisions: Constitutional Amendments as Checks on Judicial Review

Appealing Supreme Court Decisions: Constitutional Amendments as Checks on Judicial Review David E. Kyvig The duty ofthe federaljudiciary "must be to declare all acts contrary to the manifest tenor of the constitution void," proclaimed Alexander Hamilton in Federalist 78 as part of the news­ paper campaign he, James Madison, and John Jay waged for the Constitution's ratification.1 Since The Federalist Papers helped win accep­ tance ofthe 1787 Constitution, the view has been widely held that the Supreme Court speaks the final word on what is or is not constitutionally acceptable in the United States. John Marshall's masterful defense ofjudicial review furthered this notion, and it continued to spread thereafter. Abolitionists in the 1850s, populists in the 1890s, and New Dealers in the 1930s decried the Court's power to declare reform laws unconstitutional, a power they all regarded as misused but indis­ putable. Conservatives rail in the 1990s, as they have since the 1950s, against "judicial dictator­ ship" in general as well as individual Court de­ cisions they find calamitous.2 Across the politi­ cal generations and spectrum Americans have regularly expressed anxiety at the prospect of a Court dominated by Justices of contrary views. Apprehensions about the effect of judicial rul­ ings stem in no small part from the belief that the Court, or perhaps even a single Justice in an otherwise evenly divided Court, can irrevocably determine the powers, responsibilities, and limi­ tations of the federal government. This perception of ultimate judicial author­ ity ignores the language of the 1787 Constitu­ tion, the intentions of its drafters, and more than two centuries of constitutional development. Hamilton himselfacknowledged near the end of Federalist 78 that a judicial ruling was binding only "[ujntil the people have, by some solemn and authoritative act annulled or changed the established form."3 The Founders, he understood though perhaps did not emphasize sufficiently, made constitutional amendment available as a final appeal ofjudicial interpretations ofthe Con­ stitution. Hamilton's contemporaries were well aware of this means of constitutional clarifica­ tion and adjustment. In state conventions called to ratify the Constitution, delegates repeatedly lauded the Article V amendment mechanism as insurance that the untried instrument could be made to function satisfactorily. They understood equally well that the absence or failure ofefforts to reform the Constitution would sanction its ex­ isting terms as interpreted by thejudiciary. Dur­ ing the state ratification conventions those who spoke ofthe amendment process talked ofits vir­ JOURNAL 1996, VOL. 2 107 tues as a device for constitutional adjustment.4 James Wilson told the Pennsylvania ratification convention that Article V was "a principle of melioration, contentment, and peace."5 In his 1796 farewell address, President George Wash­ ington extolled Article V as a means to make or alter the terms of government through "an ex­ plicit and authentic act of the whole people."6 Subsequently, however, the role ofconstitutional amendment as a final check on judicial review appears often to have been lost from view. A modem scholar troubled by inattention to constitutional amending, Bruce Ackerman of Yale Law School, has argued forcefully for its reconsideration. "Article V is the most funda­ mental text of our Constitution, since it seeks to tell us the conditions under which all other con­ stitutional texts and principles may be legiti­ mately transformed," he observes. "Rather than treating it as a part of the Constitution's code of good housekeeping," Ackerman insists, "we should accord the text of Article V the kind of elaborate reflection we presently devote to the First and Fourteenth Amendments."7 Good rea­ sons exist to support Ackerman's contention that the amending process, whether successful or not, should be accorded a place at the very heart of American constitutionalism. The amendment process has served repeat­ edly as the ultimate appeal ofjudicial decisions. Usually amending efforts have failed and thereby solidified the authority of Supreme Court rul­ ings. Ofthe thousands ofamendments proposed, many have sought to reverse Court rulings; a mere handful have been approved. Those occa­ sional exceptions deserve attention, however. They should serve as reminders that the Court's power has never been absolute. At the same time, even failed amending efforts should demon­ strate that sanction for...