At Liberty Law Blog, John McGinnis: The Merriest Amendment and Constitutional Theory. From the introduction:
[December 5] was the 82nd anniversary of the [21st Amendment], repealing Prohibition, which had been imposed by the Eighteenth Amendment just fourteen years earlier. Repeal was a happy day, not only for those who drink alcohol but also for the many people saved from a culture of violence that the illegal business of evading Prohibition generated.
Beyond its good social consequences, the repeal of Prohibition has implications for constitutional theory. Many critics of our Constitution contend that the amendment process, which requires two thirds of Congress and three quarters of the states for enactment, is too strict. Moreover, critics claim that its excessive stringency has become even clearer as more states have joined the union. This argument is often used to support the claim that originalism needs to be discarded, since we need judges to update a Constitution whose amendment process is inadequate.
But Prohibition and its repeal provide a riposte to that claim. As Mike Rappaport and I argue in Originalism and the Good Constitution, the rapid consensus that the Eighteenth Amendment was a mistake supports our position that the amendment process is not too strict. As stringent as Article V is, it still permitted enactment of a provision that was quickly admitted to be a costly failure, illustrating the dangers of a less stringent amendment process. And at the time there were forty-eight states in the union—just two fewer than we have today.
Posted at 6:50 AM