Does the Constitution mean what it says? The answer may seem obvious, but it’s not a trick question. All too often, politicians and judges have been faced with this question and responded not with a simple “yes,” but instead with words and actions that boil down to “no” or “not entirely” or “it’s complicated.”
Today in an op‐ed for The Hill on the 2020 Census results, I recounted one of the starkest examples of this phenomenon: Section 2 of the Fourteenth Amendment. The text of Section 2 is not even close to being ambiguous. It says that when a state denies or abridges the right of any male citizen 21 or older to vote, the state’s census count “shall be reduced.” The more such people a state disenfranchises, the more its census count is reduced. The only exception provided in the text is if the disenfranchisement is “for participation in rebellion, or other crime.”
Yet as I lay out in the op‐ed, the executive branch has for 150 years neglected to apply Section 2 and declined to reduce the census count of any state. The Census Bureau has instead produced its count of state populations and apportioned house seats as if this reduction requirement did not exist, making Section 2 effectively a “lost provision.”
But why should we care? Section 2 of the Fourteenth Amendment has certainly become anachronistic in several ways. Its primary goal was to incentivize the southern states to finally enfranchise their Black citizens. But that purpose has been more effectively achieved by the Fifteenth Amendment and its later implementing legislation. In addition, Section 2’s implicit assumption that males 21 and over constitute the baseline standard for enfranchisement no longer holds true after the Nineteenth and Twenty‐Sixth Amendments extended suffrage to women and 18‐year‐olds nationwide.
Nonetheless, we should care quite a bit about the non‐enforcement of Section 2. That’s because it’s a particularly blatant symptom of a much broader problem. Its nonenforcement goes to a fundamental debate about our constitutional structure: How does the Constitution change?
Why is understanding legal change so important? Because understanding legal change is necessary for understanding what is currently the law. As Professor Stephen Sachs has explained, “the legal rules that the Constitution establishes today are the ones it established at the Founding, plus any lawful changes.” Because “our law stays the same until it’s lawfully changed,” our law can only be understood by identifying lawful changes. Every legal system has rules of lawful change, and “until something happens to trigger those rules, everything that’s already in the system is supposed to stay the same. That’s what it means to have rules of change: if the rules aren’t satisfied, there’s no change.”
So what are the Constitution’s rules of lawful change? On one straightforward view, the Constitution can only be changed in the way the Constitution says it can be changed: the Article V amendment process. John Manning, the current dean of Harvard Law School, has laid out the case for this view. The original text of the Constitution was the product of careful compromise, as were all the amendments subsequently passed via Article V. Why then should anything less than an Article V amendment have the power to change the text as agreed to? In other words, “inferences from the Article V amendment process suggest that judges should adhere strictly to clear and rule‐like constitutional texts.”
But on another view of the Constitution, notably propounded by Professor Bruce Ackerman, the Article V amendment process has become too cumbersome and “no longer makes sense for us.” On this view, the Constitution can be effectively changed not just through formal amendments, but also through “constitutional moments” when the nation acquiesces to new governmental powers that would have been unconstitutional under the “old” rules (the New Deal is frequently invoked as such a moment).
There are many variants of this latter view, but what they all have in common is the belief that some combination of external factors (e.g. necessity, longstanding practice by the political branches, an erroneous judicial decision that gains widespread acceptance) can “change” the meaning of the Constitution without a formal amendment.
While the Supreme Court has never explicitly endorsed this latter view, several of its decisions have implausibly found ambiguity in the constitutional text and allowed modern political will to trump original meaning. Thus, during the New Deal, the Court held that the Constitution’s plain and unmitigated prohibition on state laws “impairing the obligation of contracts” actually includes an invisible “except in times of economic emergency” exception.
More recently, the Court held that the word “recess” in the clause allowing the president to make recess appointments should be interpreted based on “the actual practice of Government” in the years after the clause was enacted, which the Court admitted it was “hesitant to disturb.”
And perhaps most egregiously, the Supreme Court has retained its early misinterpretation of a crucial rights provision in the Fourteenth Amendment for over a century. In the 1870s, the Court almost completely erased the “Privileges or Immunities” Clause from that amendment through an erroneous interpretation, and that interpretation has remained binding judicial precedent for nearly 150 years out of sheer inertia. The Court recently admitted that it saw “no need to reconsider that interpretation” because the erroneous approach had been the judiciary’s practice “for many decades.”
In each of these instances, the Court has effectively allowed de facto alterations to the Constitution’s original meaning to occur not through Article V amendment, but instead through the concerted actions of just one or two branches of government.
That is the unfortunate trend of which the erasure of Section 2 is a striking example. The command that a state’s census count “shall be reduced” has been changed by the executive branch through 150 years of non‐enforcement into what is, for all practical purposes, a discretionary suggestion. The mainstream legal view is that this erasure is legitimate, as pithily demonstrated by Section 2’s treatment in the Congressional Research Service’s comprehensive guide to the Constitution. In a tome that runs nearly 2900 pages, Section 2 of the Fourteenth Amendment receives only a page and a half, where it is dismissed as “little more than an historical curiosity.”
Thus, whether Section 2 should be changed is not really the point. Perhaps it has indeed outlived its usefulness, an anachronistic relic of a brief political moment. The crucial question is, instead, how it should be changed. If such an explicit constitutional command can be ignored by the executive branch, any constitutional provision could be similarly erased without a formal amendment.
If instead we insist that Section 2 is the law of the land until lawfully changed by constitutional amendment, we stand for a principle that is the best chance of preserving the Contracts Clause, the Privileges or Immunities Clause, and every other endangered constitutional provision.
The Constitution means what it says until it’s lawfully amended. Every single word.
Commentary by Thomas A. Barry. Originally published at Cato At Liberty. https://www.cato.org/blog/constitutions-text-cant-be-ignored