The wolf amendment
Prof. Kerr asks a good question, one that touches on a point that differentiates my argument from that of some of my allies, and one that gives rise to another point that I think strengthens my view. How should a judge act if the American people were to ratify a constitutional amendment that explicitly adopted existing precedent and rejects the Declaration as a guide for constitutional interpretation? In such a case, I would argue that judges would be bound to comply with that amendment—with certain important exceptions.
If the Constitution were amended to declare, say, that “commerce” in Art. I sec. 8 includes economic activity that has the potential to interfere with the national economy when aggregated, then that would ratify existing practice and would be legitimate. In fact, I advocate something like this, myself. I believe that a constitutional amendment ought to be proposed to constitutionalize things that I think are not constitutional—various parts of the regulatory welfare state, for example. Were such an amendment proposed, I have no doubt that it would pass overwhelmingly—although I would vote against it. But even knowing I’d be outvoted, I would favor such an amendment being proposed and ratified, because it is better to have the Constitution clear on these things. Such an amendment would give constitutional legitimacy to the welfare state which it currently lacks—and would rectify the problem we now have in our constitutional law, where judges strain and force the text’s meaning (e.g., the commerce clause) or ignore whole swaths of it (e.g., the public use clause, the due process clause, the privileges or immunities clause) in order to rationalize the existence of institutions that are, in fact, unconstitutional. It is because judges bend over like Chinese acrobats to find some way to…
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