Constitution is a living document, an instrument which makes the government system work. Its flexibility lies in its amendments. In this edition, the text of the Constitution of India has been brought up-to-date by incorporating therein all amendments made by Parliament up to and including the Constitution (Ninety-fourth Amendment) Act, 2006. The footnotes below the text indicate the Constitution Amendment Acts by which such amendments have been made.

Is the Constitution (apart from the amendment process) supposed to have judges driving change, or is it supposed to let legislatures drive change with the Constitution serving to check them in certain directions?

If the Constitution is supposed to have judges driving change, is there really a purpose for an amendment process at this point? Can’t pretty much any possible right be framed under expansive enough readings of the 14th amendment as to require no further amendment? Is that a good thing?

“Ackerman’s model is interested in big changes at the level of new regimes; Levinson’s and my model, by contrast, is interested in changes great and small. For Ackerman, We the People must self-consciously understand that the Constitution is being amended outside Article V and give their consent through a series of key elections. In Levinson’s and my model the people don’t have to have this self-conscious understanding. Elections matter, but primarily because they decide who becomes President and who holds the balance of power in the Senate, thus affecting who gets appointed to the courts. Social mobilizations matter a great deal too, but they matter especially because they change public opinion, social mores and constitutional common sense. This affects the assumptions of judges on the bench, as well as what kinds of people will get appointed to the bench later on.”

Unless I’m deeply misinterpreting, you seem to think that this is both descriptive and good. It may be descriptive, but I can’t believe that it is good. How did we get to the point where the most important thing to think about in a President is who he will appoint to the courts? Why is it a good thing that most important thing about the Senate is how they will constrict that power? From an originalist point of view, it is pretty obvious that judges weren’t thought to hold THAT much power. From a progressive point of view, it doesn’t seem clear that such an arrangement is particularly good or well formed. Why is it good to have a political landscape where you can say: “Elections matter, but primarily because they decide who becomes President and who holds the balance of power in the Senate, thus affecting who gets appointed to the courts.”

“(1) Balkin & Levinson’s theory very much reminded me of Lenin’s vanguard of the proletariat.”

I did not mean that as a potshot or a snarky, “Ha, ha, you commies,” response. I meant, it actually reminded me of Lenin’s theory, and I wanted to point out that what they’re arguing has been argued before (albeit in a different context, and Lenin was arguing that the Bolsheviks should be the vanguard, not that they descriptively were).

Henry, I strongly suggest laying a heavy banning hand on this seminar, if you’d like it to remain one. It’s a pain and a burden, but it’s going to be necessary. This seminar will probably host some heated discussion and debates, even without trolls.

(1) Balkin & Levinson’s theory very much reminded me of Lenin’s vanguard of the proletariat.

(2) I don’t think we need the amount of writing produced by academic lawyers to tell us that the Constitution changes over time because of a complex and diverse set of factors. Insofar as Balkin & Levinson’s theory of constitutional change amounts to saying, “It’s complicated,” their theory of constitutional change approaches reality. They’re describing, not prescribing. I was reminded of Borges’ story about people who set out to make a perfect map of the world.

(3) I haven’t done research to ground my claim, but I think there’s a better theory for liberals in a theory of popular sovereignty than there is from popular constitutionalism. I have been thinking about this for a bit now, and I think there are plausible links between the conceptualization of popular sovereignty at an individual level, a robust view of human dignity that stabilizes the emphasis on the individual, and rights. I think, if properly constructed, such a theory could provide powerful support for a liberal program. It’s a normative framework, so it doesn’t respond to questions of what the Framers intended or what the Constitution meant in 1790 or 1937. But I think, if more fully elaborated, such a framework would support an expansive conception of the Equal Protection Clause, of the Privileges & Immunities Clauses, as well as the standard Bill of Rights protections. It would provide support for rejecting the death penalty, for accepting abortion (within certain limits—there does come a point where abortion becomes troubling when we’re emphasizing the importance of individuals from a theory of dignity), for progressive tax schemes, and so on. But as I said, I haven’t rigorously worked through the implications of it. Yet. :)

Mr. Blkn, n ths cntry th grt mss f rdnry ppl (n whch mss ncld myslf) hv hygn s gd s yrs r tht f ny thr mddl-clss prsn.

r y rpn, nglsh prhps? Bcs w tnd nt t s tht dm hr.

Whn t s sd, th xprssn rvls mr bt th spkr thn t rvls bt th ntndd rfrnt.