Levin-Scalia Solution to Judicial Activism Declared in Aggieland
by Marc A. Levin

Speaking at the George H.W. Bush Presidential Library at Texas A&M on May 5, U.S. Supreme Court Justice Antonin Scalia delivered a convincing case for his judicial philosophy of originalism while thoroughly refuting the notion of a living Constitution. Scalia believes that judges should adhere to the original text of the Constitution as expressed in the meaning of the words and their understanding at the time the Constitution was ratified.

Therefore, both in his speech and his eloquent dissents, he rejects such elusive concepts as “evolving standards of decency” that modern judges have used to impose their personal opinions on matters such as abortion, gay rights, and the death penalty. Scalia's call for a return to originalism was warmly embraced by a crowd of over 1,000 that included former President Bush and several Texas Supreme Court Justices. In fact, when two consecutive students posing questions thanked him on behalf of the A&M Young Conservatives of Texas and College Republicans respectively, Scalia remarked to thunderous applause that he was preaching to the choir.

Indeed, while originalism remains a minority position in the federal judiciary, and even more so among law professors, the last few years have seen increased public expressions of outrage at judicial lawmaking, culminating this year with a best-selling book by my namesake Mark R. Levin. However, establishing the merits of a return to originalism is the easy part – the harder question is how to get there from here.

At Texas A&M, Justice Scalia offered no solutions in his prepared remarks other than the appointment and confirmation of strict constructionist judges, but that is proving to be quite a challenge. Moreover, due to the power of stare decisis – the judicial presumption against overturning past decisions – even many conservative judges are reluctant to overrule activist decisions that have no basis in the Constitution.

In response to a question about Congress removing activist judges for bad behavior, Scalia correctly noted that if this became commonplace, it would simply turn the judiciary over to majority rule, undermining its role in protecting the constitutional rights of the minority. Others have suggested that Congress exercise its constitutional authority to limit the jurisdiction of the Supreme Court, but the Court could strike down any such attempt by Congress by ruling that this provision covers entire categories of cases rather than subject matters like abortion or by simply classifying a case differently than Congress.

So I stepped up to the microphone and asked Justice Scalia whether the best solution might not be to make it easier for the people to amend the Constitution. Somewhat stunningly, Justice Scalia responded that this is the one part of the Constitution he would be inclined to change.

Scalia noted that two-thirds of each chamber of Congress must approve the same language, which then must be approved by three-quarters of state legislatures. He added that he had once done the math and discovered that twelve states with only two percent of the population could block any amendment. He ended his answer by saying outright that he would support making it easier to amend the Constitution.

Did the founders make a mistake in not making the Constitution easier to amend? Not necessarily. Scalia pointed out that there were thirteen states at the time of the founding so only ten states would have been needed to amend the Constitution. The populations of the states also did not vary as much as today.

Today, however, the Constitution couldn't be much harder to amend, a fact borne out by recent history. There have been only five amendments since 1934. The only amendment since 1971 was a minor change to the procedure for approving congressional pay raises.

Since the public hasn’t been amending the Constitution regularly, the judiciary has picked up the slack. The era of judicial activism essentially began in the Depression when the Supreme Court struck down Franklin Roosevelt's New Deal programs that fell outside the enumerated powers granted to the federal government. Rather than asking Congress to initiate the formal amendment process to expand the constitutional role of the federal government, Roosevelt responded by threatening to pack the Court with liberal judges who would reverse precedents invalidating New Deal programs. The Court eventually got the message and reversed itself.

In more recent times, the Court has most controversially amended the Constitution by adding new social rights, such as the right to an abortion and sodomy. The Court’s death penalty jurisprudence, which Scalia blasted in his speech, perhaps most clearly demonstrates that the Court is indeed amending the Constitution. In the course of several decades, the death penalty has been upheld, struck down completely, and just last year struck down as it applies to minors. Of course, no heretofore unseen language in the Constitution has ever been magically uncovered, but the Court in its Roper decision last year concluded that the “evolving standards of decency” had changed, relying in part on international rulings, a practice Scalia properly lambasted in his remarks.

Amending the Constitution to streamline the amendment process would combat judicial activism in several ways. First, it would obviate the perceived need for judges to update the Constitution. Much like water building up at damn, when a supermajority exists for changing a fundamental part of our social contract, such as the public demand for an expanded federal government to urgently battle the Depression, the country could turn to the formal amendment process rather than judicial lawmaking.

Indeed, making the Constitution easier to amend answers one of the most common critiques of originalism – that the Constitution cannot be a legal straightjacket which does not adapt to changing times and needs.

Second, when judges effectively amend the Constitution through activist decisions, the public would have effective recourse. An amendment could be passed clarifying, for example, that a new right created by the Court is not in fact conferred by the Constitution.

So what would the ideal amendment procedure be? It should, of course, retain a supermajority requirement so that stability is preserved and the Constitution is not reduced to mere statutory law. A minor change would reduce the requirements to three-fifths of Congress and three-fifths of the state legislatures.

Better yet, just as state legislatures no longer select the Senate, it might be time to eliminate them from the amendment process altogether. Many state legislatures only meet every other year for six months and some have unique procedural requirements, such as a two-thirds majority to bring a matter up for debate.

Instead, after three-fifths of Congress approves an amendment, it could then be submitted to the public for a vote in the regular federal election held every two years. Furthermore, to address very rare emergencies, if three-fourths of Congress approves an amendment, Congress could be empowered to call an immediate election at which three-fourths of voters would have to approve such an emergency amendment.

Allowing the public to vote on amending the Constitution would remind Americans that it is their Constitution and that they are the ultimate arbiters of whether it should be changed.

A final option would be to use the electoral college for amendment ratification after three-fifths of Congress approves. Instead of the 270 electoral votes needed to become President, a supermajority of perhaps 350 would be required. Electoral votes could be allocated by either state legislatures approving the amendment or by a direct election of the people. This approach would have the advantage of accounting for population differences between the states while still giving small states a little more influence than they would exert in a national popular vote.

It is not everyday that a U.S. Supreme Court Justice whose paramount obligation it is to defend the Constitution advocates changing it. It turns out that Scalia is not so much against a living Constitution as against ceding control of the updating process to nine unelected lawyers. It is after all the people’s Constitution. Some degree of flexibility is fine as long as it is the people doing the flexing and the judges doing the interpreting.

Marc A. Levin is an attorney at Potts & Reilly L.L.P. and a former law clerk to Judge Will Garwood on the U.S. Court of Appeals for the Fifth Circuit. He can be reached at mrmarclv@aol.com.