Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Wednesday, December 13, 2017

Cutting it out from the Constitution with a strike-through amendment

A practical problem facing many proposed constitutional amendments is that they add language to the Constitution that can be misinterpreted. The fear of misinterpretation, in turn, dampens people's willingness to support the amendment.

Whether the fear of misinterpretation is well-founded in any particular instance or not, the dampening effect that results can be real and significant. Think, for example, of how concerns about judicial adventuresomeness played into campaigns against ratification of the Equal Rights Amendment in the 1970s.

One way of addressing this problem would be to an amendment that does not anything to the text of the Constitution, but just takes it away.

No such amendment of this sort has ever been made. But that may be all the more reason for doing it now.

The earliest we approached an amendment of this sort is the Eleventh Amendment. It provides a rule of construction for a portion of Article III:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

The amendment's language refers back to the menu of case- and controversy-types in Article III, ยง 2 that sets out matters that can be brought within the judicial power of the United States.

Perhaps it would have been simpler to just cross out certain items in this menu, like this:

The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

But this move would have amended too much. The strike-outs would have gone further in eliminating jurisdiction than what the text of the Eleventh Amendment seemingly accomplishes. That text does not touch controversies between citizens of a state and foreign states, citizens, or subjects, but leaves them within the reach of the judicial power of the United States. By contrast, the strike-through amendment would have taken these controversies out of the reach of the federal judicial power.

Whatever reason the framers of the Eleventh Amendment had for choosing the course they did rather than a strike-through amendment, the resulting text has been a site of great confusion and controversy. The body of "Eleventh Amendment" sovereign immunity law (in scare quotes because much of that law these days has little to do with the Eleventh Amendment itself) is in very bad shape now.

A more recent missed opportunity for a strike-through amendment was the Twenty-First Amendment. This amendment ended Prohibition by repealing the Eighteenth Amendment.

Its objectives probably could have been accomplished with a strike-through amendment together with ordinary federal legislation. But the Congress that proposed the amendment chose a different route, perhaps because of uncertainty about what simply repealing the Eighteenth Amendment would have meant about the respective powers of states and Congress to regulate alcohol sale, shipment, and consumption with the Eighteenth Amendment gone. Those matters had been the subject of constitutional litigation under the dormant Commerce Clause in the decades preceding the Eighteenth Amendment.

Whatever the reason for its wording, Section 2 of the Twenty-First Amendment has been another site of confusion and controversy in our constitutional law. 

Although no strike-through amendment has yet been enacted, I can think of at least one (which I am setting up for a later post) that would improve our Constitution. 

* * *

What does this have to with Catholic legal theory (apart from its overlap with yesterday's post)? I am here reminded of the dangers of constitutional idolatry. There's nothing like a legal Exacto knife cutting through the Constitution itself to expose the cant of constitutional-law cultism for what it is.

Our Constitution is a human artifact made for human purposes. We should treat it as such, including by acknowledging its mistakes in the act of amending them.

It's time for a strike-through amendment.


Walsh, Kevin | Permalink