Monday, September 28, 2009

Constitutional Amendment as Protest

Lawmakers in several states have begun to seek state constitutional amendments that will attempt to thwart President Obama's healthcare plan, in that they will outlaw the statutory provisions dealing with healthcare mandates, so reports the New York Times. Briefly, the purpose of the mandate is to, well, mandate that people be covered, by either forcing them to buy health insurance or pay a penalty.
Now, let's assume that these efforts will be successful and that some state constitutions will indeed be amended to reflect the anti-mandate position. This will not be exceedingly hard to accomplish. Unlike the federal constitution, most state constitutions are relatively easy to amend, and are often done through citizen initiatives or referendums. Altogether, there have been more than 12,000 amendments in the constitutions of the 50 states combined.
But, even assuming the passage of these amendments, will it make any difference?
Hardly. Constitutional doctrine is pretty settled on this issue. The federal preemption doctrine, as was recently articulated in Wyeth v. Levine, a decision from this past March, reiterates the basics. If Congress's purpose in preempting state law is clear, then that's what counts. It is true that in areas of traditional state concern, such as crime and education, and possibly health, the Court assumes that Congress did not mean to impinge on the states' traditional police powers. However, even that presumption doesn't hold in cases where Congress's purpose was manifest and clear. Moreover, the Court infers a congressional intention to preempt if the regulatory scheme is pervasive, to the extent that it occupies the field. Given the foreseeable scope of Congress's plan, it's safe to assume that should these amendments be litigated, they will be invalidated under the Supremacy Clause.
Obviously, state legislators know all of this. And if not, they have lawyers to tell them. So, what's this all about? It seems that for these legislators, enacting a state constitutional amendment is a form of legislative protest. This is one way for state legislators to express dissent. Rather than protesting through extra-legal means, the dissent is channeld through the regular institutional framework signalling the powers in D.C. that, "we may not be able to do a lot about this, but we sure don't like it!". In this case, this is done through the enactment of an unconstitutional amendment, and probably knowing full well that it's unconstitutional.
I think this raises a whole set of interesting questions, some of which have to do with the expressive function of constitutions and constitution making. Even though there is no operative significance to these amendments, apparently there is a need (among some) to express their disapproval, and it is further important (to them) that this disapproval be expressed legally. After all, they could have issued rebuking statements to pretty much the same effect.
But I also believe there's a further tension here. I think we want to say that both the enactment of an unconstitutional amendment and the future striking it down are legitimate. But how can this be squared? I don't think I have a fully developed answer, but here's a possible direction. The answer will involve some form of federalism argument. It will be that sometimes it's important for constitutional actors to assert themselves even when they are making unconstitutional moves, because somehow this "disobedience" advances other democratic values that are no less important than the provisions the legislators seek to violate. So, in this case, we could say that in the national conversation over healthcare (more like a screaming match, actually), states have relatively few tools to signal their dissatisfaction. And given the limited arsenal, which includes the enactment of unconstitutional amendments, this is how states qua states can participate in the conversation.
I must say I'm not totally convinced by this argument, though I do have the intuition that these amendments are legitimate from a constitutional theory standpoint. Of course, I probably wouldn't be making this argument if states were rushing to invalidate the Civil Rights Act. And I'm not completely sure what accounts for this difference, because I support both healthcare mandates and civil rights.


  1. Adam, great post! I wonder whether your concern is one about democratic theory as well. By the end of your post, your suggestion is that, because of federalism, constitutional amendments to ban health care plans like that of Obama are not unconstitutional, but that constitutional amendments that would do away with civil rights would be wrong. Perhaps, this is because yout view of democracy is that basic constitititional guarantees - civil rights - are not subject to democratic deliberation but that, in contrast, economic policies are subject to democratic scrutiny. I think I share that view. My comment is not original: it is the view held by many holders of deliberative democracy. Is this yout account of what´s at stake here?

  2. Thanks, Martin!
    Actually, I think that these new amendments (should they pass) would indeed be unconstitutional. Similarly, trying to overrule the Civil Rights Act would be unconstitutional as well. The difference is that, notwithstanding the fact of unconstitutionality, I still believe that the former are legitimate from a democratic theory standpoint, whereas the latter probably aren't. Since they would both be unconstitutional (and justifiably so), I'm not sure why, from a democratic theory standpoint, I hold these conflicting positions.

    Your explanation of deliberative democracy is interesting, and I would tend to agree with that, except that I also tend to accept Habermas's deliberative preconditions, which call for the provision of social and economic rights that are necessary for discourse.

    However, I admit that there's a tendency, especially in the U.S., to privilege civil and political rights over social rights, so maybe the difference can be attributed to that. That, and the particular history of the Civil Rights Act which makes it, in Eskridge's and Ferejohn's words, a "super-statute".

  3. Nice post, it really made me think about the distinction between legality and legitimacy, and what does the latter really mean in the context of democracy. When you say that, although both would be defective in legal terms, an amendment to protest the healthcare mandate would be (democratically) legitimate, but one directed at protesting the Civil Rights Act would be illegitimate, my immediate reaction is that there is something strange going on, since I always think about legitimacy as a matter of pedigree (in this case, of democratic pedigree). Thus, since both constitutional amendments would come from the same source, it seems unclear how one of them can be legitimate and the other illegitimate (unless one adopts a substance-based conception of legitimacy).

    The question would then be if you can be right even from a source-based conception of legitimacy? One way of answering that question in the affirmative (I am just thinking aloud here) would be something like this. The Civil Rights Act can be understood as an attempt to allow previously excluded groups to become full members of the political community. That means that the democratic legitimacy of an attempt to resist that Act through a constitutional amendment would be inevitably tainted by the fact that, as a result of their exclusion from many areas of political and social life, these groups were not allowed to fully participate in the decision of whether to “protest” the Act through a constitutional amendment. In other words, the Civil Rights Act is connected to the very idea of democracy and the ability to be a full participant in a political community, while the healthcare mandate, good as it might be, has a weaker connection to democratic principles (even though one could make the connection through a Habermasian argument).


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