The U.S. Supreme Court has heard oral arguments on the gay marriage cases, and it now seems poised to impose a national marriage policy on America. This new national policy will likely restrict popular choice on a key cultural issue by preventing states from democratically preserving the traditional notion of marriage as being solely between one man and one woman. Some will view this development as an illegitimate alteration of the Constitution through judicial fiat, while others will surely herald it as the proper understanding of the Constitution’s “aspirations.” The Supreme Court’s majority opinion will no doubt argue that the Constitution requires this decision, and it will do so in spite of overwhelming evidence that nobody who wrote or ratified one word of the Constitution ever contemplated a national gay marriage policy. As Justice Scalia pointed out during the oral arguments in Hollingsworth v. Perry, no one can plausibly say “when” gay marriage became part of the Constitution prior to the courts’ bald assertion of it. When judges conjure up national policy out of thin air, they act more like legal sorcerers than constitutional officers, and they damage the prospects of maintaining a written constitution and healthy democratic deliberation. Surely even supporters of gay marriage can see that the American polity would be better served if such a mammoth change were accomplished democratically rather than through the naked exertion of judicial will.
The common justification for the Court’s behavior is simply that federal courts are best positioned to “adapt” the Constitution to evolving social conditions. However, this position overlooks the fact that the courts are not equipped—nor empowered—to measure social change, and more importantly, that the U. S. Constitution already provides for constitutional adaptation through the Article V process outlined in its text.
The fifth article of the Constitution provides for the proposal of amendments by two-thirds of Congress or a national convention called by two-thirds of the state legislatures; amendments can then be ratified by three-fourths of the state legislatures or conventions in three-fourths of the states. Article V marks social changes institutionally and democratically, and it respects America’s commitment to the rule of law, written constitutionalism, and popular government—as well as the tensions between them. Article V is formal, explicit, and exclusive because a written constitution requires changes to be overt and to follow consistent legal procedures. Article V is also deliberatively democratic, since it requires fellow citizens to convince each other that proposed changes are beneficial and desirable before making them. Furthermore, Article V respects limits on arbitrary power by adhering to separation of powers and federalism. In contrast, judicial adaptation of the text is excessively informal, violates the separation of powers and federalism, and it is decidedly undemocratic.
Given the clear advantages of Article V, why is it neglected in favor of judicial adaptation? The major critique of Article V is that it is simply too slow and difficult to accommodate the needs of modern democracy. Just on its face, these arguments seem a bit strange when the preferred alternative is to cede such decisions to five unelected judges.
Nevertheless, while critics decry the three-fourths-supermajority requirement for ratification as unduly strict, the evidence proves otherwise. In over two hundred years, there have been thirty-three amendments proposed by Congress to the states; of those, 81 percent have been ratified. In terms of timeliness, if one excludes the Twenty-Seventh Amendment as an outlier (it took 203 years to ratify), then the average time of ratification is less than two years and it has never taken longer than four years. In short, the three-fourths requirement is not a serious obstacle to amendment.
The biggest obstacle to the Article V amendment has been the two-thirds requirement for proposals. In over 220 years, Congress has considered 11,539 amendment proposals, and only thirty-three have been formally proposed to the states. However, it is worth remembering that political consensus on any matter in such a diverse and vigorous democracy isn’t easy. For example, congressional majorities on average pass only 4 percent of bills introduced in a given session and Congress is only able to override 4 percent of Presidential vetoes when it tries to do so. Deliberation and public debate takes time, and unless one wants the Constitution to fall victim to majoritarian whiplash or elite manipulation, super-majoritarian opinion must be allowed to form over time.
In addition, through the years, Article V’s supermajority requirements have prevented multiple attempts to entrench slavery in the Constitution and to ban interracial marriage, among other harmful ideas. Surely, critics would concede that stopping such measures is a virtue of Article V, not a vice. One might add that on cultural issues the Court’s record at adapting the Constitution to fashionable opinions of its day, as it did in Dred Scott or Plessy v. Ferguson, is checkered at best.
Furthermore, it is not as if judicial adaptation itself is a speedy affair. For instance, Ted Olson, who argued before the Supreme Court on behalf of gay marriage, placed 1996 as the year it became a judicial issue. By his count, then, it has taken nineteen years and multiple court cases, in multiple states, on both the state and the federal level, just to bring the Supreme Court to this point of potentially altering the Constitution. As this example indicates, judicial adaptation is hardly a speedy or straightforward process. All of this suggests that advocates of judicial adaptation are not truly primarily concerned about the speed or ease of altering the Constitution; rather, they seem more concerned with avoiding the levels of popular consent required by Article V.
What critics ultimately overlook is that Article V’s purpose is to provide a means of registering political consensus once it emerges, not to grant a constitutional victory to powerful elites or slim and transient majorities. By its very design, Article V does not allow amendments before the hard work of crafting a political consensus has been done via good old public debate.
Decrying Article V’s difficulty while pushing for judicial adaptation is like a football team complaining about the difficulty of driving sixty or seventy yards against a stout defense to the end zone, so instead they lobby the referees to simply award them a touchdown on the premise that momentum was in their favor and they likely would have scored anyway. Such a football team would be abandoning the very substance and integrity of the game for one mere touchdown. Likewise, representative democracy is the very substance and integrity of American politics and it is deeply unwise to forsake it in the name of one fashionable issue, no matter how important that issue may be in the eyes of some.
Tocqueville warned about this democratic tendency to shun formality in the quest for “easy and present gratifications.” And yet, as he pointed out, forms are “so useful for freedom” because they “protect the weak from the strong.” On this point, the advocates of gay marriage may currently have the strength of five insulated judges in their favor, yet are they willing to live with the whims of five to four Supreme Court decisions on other issues that are dear to them, or even with this issue should a future Court reverse itself?
It is time to re-embrace Article V as the best and only legitimate means of amending the Constitution. Indeed, Americans of all stripes need to begin to heal our fractured polity by talking, even arguing, with one another, rather than asking judges to substitute their naked will for the sober and lively deliberations of a democratic people.
Darren Patrick Guerra holds a Ph.D. from Claremont Graduate University, and is an Associate Professor of Political Science at Biola University. His book Perfecting the Constitution: The Case for the Article V Amendment Process was published in 2013 by Lexington Books.