Andrew Hyman comments:
Per the discussion amongst Mike Rappaport, Ed Whelan, et al. about whether non-originalists are “lying” about the Constitution….
Suppose a judge says that she is applying the Constitution, while openly rejecting the original meaning of an Article V amendment (e.g. the Thirteenth). It then makes sense to ask whether the judge is being honest about adhering to the Constitution.
The question probably turns on whether there is really any valid argument that the Article V amendment process is a non-exclusive method of amending the Constitution compatible with that document; if it is non-exclusive then the original meaning of Article V amendments does not necessarily determine what those amendments mean right now. But, I think it's very clear from the plain text of Article V that it is indeed an exclusive method, so I would have to say that the judge is either lying, or that she is badly misinterpreting Article V.
I'm not saying that judges or would-be judges should always be completely honest about what they're thinking. For instance, a judicial nominee goes to a hearing. The senator asks what the nominee's greatest weakness is. The nominee says "honesty". The senator says, "I don't think honesty is a weakness". And the nominee replies: "I really don't give a hoot what you think".
Complete honesty is probably too much to ask from anyone. But asking judges simply not to lie is a very reasonable request — though in some cases it might lead to very brief opinions.
To the extent that non-originalists rely upon the validity of non-Article V amendments, it seems that their primary justification is that the Constitution itself was (allegedly) adopted in violation of the Articles of Confederation. However, that notion is mistaken. Akhil Amar has suggested that the Constitution was permissible under the Articles of Confederation. Even if it was not, Francisco Martin suggests that the Articles of Confederation was merely a treaty that had already lost its binding force. Another plausible argument is that the Constitution replaced rather than amended the Articles of Confederation, and therefore was not subject to any unanimity requirement. And, of course, James Madison argued any purported violation of the Articles of Confederation had become irrelevant by unanimous consent: “As this objection, therefore, has been in a manner waived by those who have criticized the powers of the convention, I dismiss it without further observation.” As far as I know, there has not been any unanimous consent to waive Article V.
Posted at 6:57 AM