In the midst of a rant against Team Red, James Fallows makes the following observation:
As with equal representation for all states in the Senate, real-world circumstances have changed so dramatically in the past 230+ years that the practical-minded drafters of the Constitution would never have suggested that the details of their scheme should be applied, unaltered, in the 21st century. [italics mine]
For the sake of argument, let’s assume that the practical-minded drafters of the Constitution didn’t think that every state should be entitled to equal representation in the Senate forever. If only there had been some way to include provisions in the constitution that expired, could be amended, or only applied to some states—for example, the Constitution could have still guaranteed equal numbers of Senators for each state that existed at the time of ratification, which would have still effected the Great Compromise between large and small states, but might have made no such guarantee for future states, the admission of which were clearly anticipated in the text. That they didn’t suggests that they thought that equal representation of the states in the Senate to be an important value of the constitutional order they established.
And, of course, the Framers designed the Constitution’s scheme to be alterable. If, sometime in the last 230 years, societal consensus had evolved to produce a more Hamiltonian view of the powers of the federal government vis à vis the states, surely the Constitution could have been amended to provide for that consensus to be enshrined into it. The fact the Constitution has laid effectively dormant for 40 years speaks more to the fact judicial whims have evolved to “constitutionalize” changes that in the past would be done by amendment than some inherent difficulty in amending the Constitution in the first place.
Michael Waterstone in a post about a Supreme Court case that I really don’t know anything about one way or another writes about Justice Scalia’s concurrence in the judgment in said case:
But to Justice Scalia, this means that (except for race discrimination, which he views as different for stare decisis reasons), he would limit Congress’s Section 5 power to conduct that itself violates the Fourteenth Amendment. I find this flat out wrong. As a textual matter, Section 5 gives Congress the power to enforce the Fourteenth Amendment by appropriate legislation. If all Congress can do is outlaw that which is already unconstitutional, what is the point?
It would seem to me (at least) that the major point of the 14th Amendment was to confer to Congress and the federal government more broadly the power to enforce, upon the states, at least some of the guarantees embodied in the Constitution that had previously been held under Barron v. Baltimore (1833) not to be so-enforceable, in essence to expand Congress’ enumerated powers to encompass enforcement of the amendment itself (which it would not have, absent the Supreme Court reinterpreting Article I of the Constitution to imply Congress has some sort of power to do things that aren’t listed there and not necessary or proper to do the things listed there).
Perhaps viewed through a modern lens where the judiciary routinely has the backing of the executive and legislative branches to overrule the decisions of state governments, such a power seems rather trivial, but in the context of the 1860s when state laws were rarely challenged by the federal government (and when the scope and powers of the federal government were interpreted so narrowly as to rarely infringe on what the states wanted to do) I think explicitly stating Congress had such a power to enforce a new provision of the Constitution, particularly since the 14th Amendment was only the second (after the 13th) to expand the powers of the federal government at the expense of the states (again, given that the Bill of Rights was generally seen at the time as to only apply to the national government, and that the 11th Amendment had actually reduced the powers of the federal government), is hardly meaningless or self-evident.
The Times-Picayune helpfully explains the four state constitutional amendments on the ballot next Saturday. They don’t explain how most of this crap ended up being decided in the state constitution in the first place.