Category: amendments

The Clamor of Many Voices

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September 28, 2025

By Stephen Stofka

This week I have been reading Jill Lepore’s recently published book We the People. She writes about our legal and legislative institutions and processes, but it is very much a book about people. What became clear to me while reading the book is that we deny others agency and rights in order to protect our own agency and interests. We defend our values and point of view in defiance of accusations of prejudice.

To keep this within a reasonable reading length, I will break this down into two parts. This week, I’ll discuss the topics in Lepore’s book. Next week, I will use some examples in Lepore’s book to explore the similarities and contrasts in political ideology and judicial interpretation.

Lepore explores the history of trying to amend the Constitution. Only a few of the more than 12,000 amendments proposed to Congress in the past 225 years have been ratified. Throughout the country’s history there have been repeated attempts to amend Article 5 of the Constitution, the article that sets the rules for an amendment’s ratification. An amendment must win two-thirds of the vote in both houses of Congress before it is sent to the states for ratification. Three-quarters of  the states must ratify it before the amendment is added to the Constitution.

Leverage of power by a small minority had weakened the colonies under the Articles of Confederation and led to the drafting of the Constitution. Because of the three-fifths rule that counted slaves as three-fifths of a person, slavery gave the southern states excessive representation in Congress and in the Electoral College. Naturally, the slave states wanted to expand slavery to new territories and states to preserve and enhance those advantages. As the country expanded after the 1803 Louisiana Purchase, the framers knew that the ratification requirements set out in Article 5 were too onerous. The southern states and the newer states commanded far more legislative power despite their smaller populations. They used that power to block any amendments that threatened their advantage.

Throughout the country’s history, the amendment process has produced a lurching effect. Long periods of Constitutional inaction are followed by several amendments when there is a shift in popular sentiment and one party gains an electoral advantage strong enough to complete the obstacle path of ratification.

In the first part of the 19th century, sixty years passed without an amendment jumping the high hurdle set by Article 5. The deaths of 600,000 soldiers in the Civil War changed that political landscape, and the 13th, 14th, and 15th amendments were passed. Another 45 years went by before the four amendments of the so-called progressive movement passed during the Wilson era. These included the 16th amendment permitting the federal government to tax income, the 17th amendment enacting the direct election of senators, the 18th amendment prohibiting the sale of alcohol, and the 19th amendment, giving women the right to vote.

Lepore notes that there are two ways to amend the constitution. The first is by actual amendment and ratification. The second is through judicial interpretation. Because ratification is such an arduous process, each party tries to amend the constitution through judicial interpretation. There are two types of constitutional interpretation, statutory and contractual. A statutory approach reads the text of the Constitution as though it were a statute. A contractual approach regards the Constitution as a contract between states. Understanding the intention of the parties involved is key to deciding case law. That understanding may require the use of historical documents and other secondary sources.

Who decides how to interpret the Constitution? Jefferson and Madison favored a contractual reading, which emphasizes the mutual consent of the parties to the contract. The sanctity of contract was so important to the framers that Section 10 of Article I prohibits the states from passing any “Law impairing the Obligation of Contracts” (Source). Both men were advocates of the principle of nullification, that a state had a right to nullify any federal law that the state thought was unconstitutional. Hamilton and Adams preferred a statutory approach, relying solely on the text (p. 149-150. Note: any references I made with just page numbers will be to Lepore’s book).

Lepore writes, “Early Americans talked about their Constitution the way the English talked about theirs, less as a bucket of words than as a bag of principles. As Protestants, they considered any claim to an exclusive authority to interpret the meaning of scripture to be an act of religious oppression” (p. 149). A decade after the ratification of the Constitution chief Justice, John Marshall disagreed.

In the 1805 landmark case of Marbury versus Madison, Marshall established the principal that it is the Supreme Court that determines the meaning of the Constitution. Jefferson was President, and Madison was Secretary of State at the time of the decision, and neither agreed with this reasoning but Marshall’s decision scored a win for the administration so they did not protest. Under this principle, a few people, usually men, decide what the Constitution means. The formal process of amendment ratification requires thousands of people to agree.

Because it is so difficult to amend the Constitution, Congress and advocacy groups have tried to amend the constitution through judicial interpretation. The Executive and the Senate align to appoint federal judges and justices on the Supreme Court who will interpret the law in accordance with a political ideology. As early as 1801, a lame duck Federalist Congress reshaped the judiciary and Federalist President John Adams rushed to fill new positions in his last days in office (Source).

A strong disagreement with a Court’s decision has sometimes been the impetus for the passage of an amendment. The 14th amendment overrode the Supreme Court’s 1857 Dred Scott decision that all Negroes, slave or free, could not be American citizens (Source). The 16th amendment was passed to override the Supreme Court’s 1895 decision that a federal income tax was illegal (Source).

Let’s say that there are two broad types of judicial interpretations. One of those is that the constitution is fixed or, in Supreme Court Justice Antonin Scalia’s words, “It’s dead. Dead, dead, dead!” (p. 527). This type of interpretation tries to minimize any reliance on what the text implies, to “read between the lines.” Scalia adopted a form of originalism which Jack Rakove called “public meaning originalism” (Source). This school of originalism uses historical sources to understand the public meaning of the text of Constitution when it was written. This is essentially a statutory approach that I mentioned earlier. In the 1875 case Minor v Happersett, the Court ruled that the 14th Amendment did not guarantee women’s suffrage. In a strict textual interpretation of the amendment, the Court decided that suffrage was not explicitly included and could not be implied in the general phrase “privileges and immunities.”

In contrast, Chief Justice Roger Taney supported his opinion in the 1857 Dred Scott decision with a school of originalism that searches for the original intent of the framers (p. 212). That school relies less on the Constitutional text itself and more on traditional practice (Maltz, 2007). Taney wrote:

When the Constitution was adopted, they were not regarded in any of the States as members of the community which constituted the State, and were not numbered among its “people or citizens.” Consequently, the special rights and immunities guarantied to citizens do not apply to them. And not being “citizens” within the meaning of the Constitution, they are not entitled to sue in that character in a court of the United States, and the Circuit Court has not jurisdiction in such a suit. (Source)

The second interpretative approach is that of retired Supreme Court Justice Stephen Breyer, who regarded the Constitution as a living document of values, principles and purposes, a contract between people and the governments who represent them (Breyer, 2024, p. xvii). The text of the Constitution points to the issues in the debate and cannot be the final word. As Jack Rakove (1996) pointed out in his book Original Meanings, there were inconsistencies in the wording of the hand-copied texts that were sent to the various states for ratification. In Breyer’s view, a judge’s task is to balance individual rights and the objectives of government policy.

Scalia and Breyer often debated in public (Breyer, p. 33). Scalia thought Breyer’s approach was ungrounded and arbitrary. Breyer thought that Scalia’s approach was too mechanical. He argued that an originalist approach did not achieve the objectiveness it aimed for. Since Scalia’s death in 2016, the Court’s conservative justices have struggled to apply an originalist interpretation in a consistent manner. They pick and choose the history that supports their opinions and reject the research and opinions of historians who come to different conclusions.

In Chapter 13, Lepore details this conflict in Second Amendment cases. After Justice Thomas invented a “text, history and tradition” test in writing the majority opinion in the Bruen decision, lower courts struggled to apply this multi-faceted analysis that combined both a textual emphasis and a historical-traditionalist approach. The confusion prompted another case, U.S. v Rahini, in which most of the conservative justices wrote separate opinions either concurring or dissenting with the majority decision (Source).

Lepore’s book is both informative and entertaining. She introduces us to long dead historical figures whose legacy affects our everyday lives and institutions. She takes us to seminal moments in history to give the reader a sense of time and place. She provides insightful analysis into the impassioned conflict between interests and principles. Next week, I will compare and contrast some of the judicial opinions and justices in Lepore’s book. Until then, baseball fans will have to content themselves with the start of an exciting playoff season!

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Photo by Rob Curran on Unsplash

Breyer, S. G. (2024). Reading the Constitution: Why I chose pragmatism, not textualism. Simon & Schuster.

Maltz, E. M. (2007). Dred Scott and the politics of slavery. University Press of Kansas.

Rakove, J. N. (1996). Original meanings: Politics and ideas in the making of the Constitution. Knopf.

The Reins of Judicial Power

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July 21, 2024

by Stephen Stofka

This week’s letter is about an alliance of business interests and libertarians alarmed by the growing power of the federal government that emerged during the 1930s Depression and enabled by a shift in judicial interpretation on the Supreme Court. In the following decades, executive agencies expanded their authority by assuming powers held by each of the three branches (Epstein, 2014). The agencies wrote rules like a legislature, administered the rules with or without the assent of the President, and resolved controversies in legal interpretation like the judiciary. When the Court’s decisions challenged the traditions of religious groups, social conservatives joined the coalition.

Social unrest in the 1960s followed by political turmoil and economic stress in the 1970s accompanied a generational shift in power in the Congress. A coalition of civil rights advocates  and environmental activists helped pass legislation in both areas. In the southern states where resistance to federal control was still active a century after the Civil War, voter sentiment began to shift from the Democrat Party to the Republican Party. Extractive industry groups increased their lobbying efforts to check environmental laws that increased their costs or delayed their projects (Kraft, 2022). In the 1970s, environmental activist groups turned to the courts to block industrial developments (Smith, 2022). Many of these controversies occurred in federal district courts where 860 justices with life tenure decided the application of the rules. Business groups recognized the need for judges sympathetic to any judicial philosophy that promoted a diffusion of government power to the states and individual business interests. Large corporations, enjoying many of the legal rights of individual persons since the 19th century, had revenues greater than those of many state governments, allowing big businesses the power to steer state and local policy toward maximizing profits.

A hybrid form of judicial interpretation called textualism/originalism was an effort to develop objective rules of jurisprudence to guide decisions in the lower courts. Textualism focuses on the legislative text while originalism focuses on the history of statutes and the Constitution (Eyer, 2022). Together the rules encourage justices to stay faithful to the text, history and tradition of the law. Six justices on today’s current Supreme Court hold the reins of this team of horses, which sometimes pull in opposite directions. Four decades in development, textualism and originalism have not brought the sought after clarity. Lower courts have sometimes responded with contradictory decisions to recent Supreme Court precedents, resulting in a judicial recycling of controversies in which the Court clarifies an earlier precedent.

As executive agency power expanded in the decades following World War 2, the Supreme Court expanded individual rights in its interpretation of the 14th Amendment. Richard Epstein (2014, p. 121) voices the conservative sentiment when he called this period a “veritable explosion of new rights.” The 1973 Roe v. Wade decision overruled state laws that prohibited abortions at various stages in a pregnancy, determining a right to privacy in the 14th Amendment. Social conservatives, business interests and libertarians formed an alliance of think tanks to limit the expansion of judicial and executive power.

Conservatives decried the Court’s Roe v. Wade decision upon its publication. In an interview late in her life, liberal Justice Ginsburg faulted the reasoning the court gave in that decision. She explained that the decision should have been based on a principle of gender equality clearly stated in the 14th Amendment. The Court’s ruling, based on a presumption of privacy, left the decision vulnerable to repeated attacks by groups of social conservatives. A coalition of religious groups, still angry over the Court’s 1962 decisions banning prayer in schools, now found common cause with business interests angry about the expansion of executive agency power.

For some foundational understanding of this revolution in judicial interpretation, readers will remember that the Bill of Rights was a package of ten amendments submitted to the states for ratification in conjunction with the Constitution. They applied to the federal government and were meant to assuage any concerns that this newly created federal government would impinge on the rights and power of state legislatures and the small number of individual citizens allowed to vote in each colony (Klarman, 2016). The enumerated powers stated in the Constitution was designed to define and contain the powers of the federal government but left unsettled or undefined powers to the states. In the century following ratification, the Court’s rulings gave preferential treatment to state autonomy in controversies over Bill of Rights protections. The Supremacy Clause of the Constitution gave the federal government priority if a federal law contradicted state law, but if there was no federal law resolving a controversy, state law took precedence. Separation of powers included the three branches within the federal government and between the federal government and the states.

For an evolving history of jurisprudence, I will turn to the National Constitution Center, a bipartisan independent organization authorized by Congress to educate the public on the history, text and meaning of the Constitution. They offer a free curriculum of classes on the Constitution for readers who want to expand their knowledge of the controversies related to the Constitution and its Amendments. What follows is a synthesis of a class section on selective incorporation, the Court’s application of protections for individuals to the states law.

Following the passage of the 14th Amendment, several Supreme Court decisions limited its protections against state abuses. In the 1925 Gitlow v. New York decision, the Court held that a state could not violate an individual’s First Amendment rights. In the 1960s the Supreme Court, headed by Chief Justice Earl Warren, further expanded individual rights, reasoning that the due process and equal protections guaranteed by the 14th Amendment made Bill of Rights protections applicable to the states as well as the federal government.

Before the rulings of the Warren Court, individuals had few protections against abuses by state governments. States routinely violated protections against search and seizure contained in the Fourth Amendment, the right to counsel stated in the Sixth Amendment, the protection against self-incrimination in the Fifth Amendment, and the right to free speech in the First Amendment. As I noted last week, a minority of rural voters in some states controlled the legislature through clever districting rules that magnified their representation and interests in the state legislature.

As the court has applied combinations of textualist and originalist interpretation, it has satisfied the wishes of the coalition of social conservatives, business interests and libertarians. Its Dobbs decision overruled the 50-year-old precedent set by Roe v. Wade, pleasing social conservatives. It overruled previous precedent set by the Bakke decision in 1978 that established affirmative action, pleasing business interests and libertarians. In 2008, its Heller decision established an individual right to own a gun, satisfying libertarians. It 2010 Citizens United decision overrules McCain-Feingold limits on corporate political contributions, giving business interests a greater opportunity to influence policy. Social conservatives are hoping that the court’s next term will overturn a right to same sex marriage established by the 2015 Obergefell decision.

Next week I will look at the conflicting priorities in textualist/originalist analysis and how its methodology differs from the more traditional analysis that focuses on the purpose of a law.

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Photo by Jim Strasma on Unsplash

Keywords: civil rights, environmentalism, amendments, Bill of Rights, Supreme Court, textualism, originalism

Epstein, Richard Allen. (2014). The classical liberal constitution: The uncertain quest for limited government. Harvard University Press.

Eyer, K. R. (2022). Disentangling textualism and originalism. SSRN Electronic Journal. https://doi.org/10.2139/ssrn.4090893

Klarman, M. J. (2016). The Framers’ Coup: The Making of the United States Constitution. Oxford University Press.

Kraft, Michael E. 2022. Environmental Policy and Politics. New York: Routledge, Taylor & Francis Group.

Smith, Kimberly. 2022. “Environmental Policy In the Courts.” In Environmental Policy: New Directions for the Twenty-First Century, eds. Norman J. Vig, Michael E. Kraft, and Barry George Rabe. Thousand Oaks, CA: SAGE. essay, 137–54.