Brigham Young University Law Review
Publication Title (Abbreviation)
BYU L. Rev.
Recent scholarship has convincingly shown that social movements shape constitutional law, and vice versa. To date, most theories study alternatives to formal constitutional amendments or consider the proper role for the courts in influencing the development of social movements. In this Article, however, I approach the question of constitutional change from the standpoint of social movements that oppose a constitutional decision. What tools are available to a movement seeking to change the meaning of a decision? What are the advantages or disadvantages of pursuing an Article V amendment, of codifying a favorable constitutional interpretation by statute, or beginning a litigation campaign? Often, current constitutional change scholarship has neglected these questions and has instead focused on the identification, study, and defense of alternatives to formal constitutional amendments. Consequently, theory to date has inadequately studied why and how social movements should use different methods of constitutional change-making in practice.4 In telling stories about a proposed Human Life Amendment, right-to-die lawyering, the Freedom of Choice Act, and the litigation of Planned Parenthood of Southeastern Pennsylvania v. Casey, I give a preliminary account of the advantages of two underemphasized change-making tools—Article V campaigns and efforts to change the meaning of judicial decisions by statute.
In showing that the Article V amendment process is slow and cumbersome, current scholarship has described alternatives to the formal amendment process that are argued to be more dynamic and more easily manipulated by popular movements. Similarly, since the Supreme Court’s 1997 decision in City of Boerne v. Flores placed stringent limits on Congress’s fourteenth-amendment authority to define constitutional rights or remedies differently than the Court, scholars have questioned the continuing value of using legislative campaigns to change the Constitution’s meaning.
By illustrating the shortcomings of the formal amendment process or legislative struggles, however, we risk losing sight of the ways in which movements can productively use these campaigns to change the meaning of constitutional precedents. Using the Human Life Amendment as a model, I argue instead that Article V campaigns provide movements with the time and freedom to explore and refine new constitutional ideas. Because Article V amendment proposals produce struggles that stretch over years or decades, a social movement has time to develop unified arguments that address countermovement challenges. And because Article V campaigns are not governed by the rules limiting congressional authority and do not require deference to Supreme Court precedent, social movements pursuing formal amendments have more freedom to offer new understandings of the meaning of the Constitution.
In evaluating the Freedom of Choice Act, I contend that the limits imposed in legislative struggles on movements’ freedom to explore different constitutional arguments—the political pressures to win votes and the legal pressure not to raise questions about congressional authority—force movements rapidly to develop precise, conflict-tested claims. In turn, these claims may prove beneficial in subsequent litigation.
What do we learn from viewing constitutional change in the way I propose? If we consider constitutional change from the point of view of a social movement member displeased with the outcome of a judicial decision, we can begin to understand which social, political, or legal factors make a particular method of constitutional change productive. Instead of regarding modes of constitutional change in isolation or arguing about which method of change is most effective, I contend that social movements should use Article V campaigns and legislative proposals as part of their arsenal of tools to change the meaning of a constitutional decision.
In Part II of this Article, I situate my argument in the context of current literature on constitutional change. In Part IIIA, by studying the Human Life Amendment of the 1970s and 1980s, I consider the benefits and costs of Article V campaigns. In Part IIIB, I study the constitutional arguments that emerged from the Human Life campaign and their influence on the litigation of Cruzan ex rel. Cruzan v. Director, Missouri Department of Health. Based on an examination of the Freedom of Choice Act of the early 1990s and the litigation of Casey, Part IV considers an alternative model for campaigns to use to change the meaning of a judicial decision. In Part IVA, I apply this model to analyze the costs of using legislative campaigns to change the meaning of a constitutional decision. In Part IVB, by exploring the influence of movement-countermovement conflict on Casey, I examine the benefits that may outweigh those costs. Part V offers a brief conclusion.
© 2009 Mary Ziegler
Ways to Change: A Reevaluation of Article V Campaigns and Legislative Consitutionalism, 2009
BYU L. Rev.
Available at: http://ir.law.fsu.edu/articles/337